R v Harch

[2003] QCA 315

SUPREME COURT OF QUEENSLAND

CITATION:	R v Harch [2003] QCA 315
PARTIES:	R v HARCH, Clinton Jeffrey (applicant)
FILE NO/S:	CA No 237 of 2003 DC No 10 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
JUDGE:	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 18 months imprisonment, suspended after 4 months for 2 years – where also disqualified from driving for 2 years – 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: The reasons in The Queen v. Harch are as follows. The applicant, who was 20 years of age when the offence was committed, pleaded guilty to dangerous driving with a circumstance of aggravation that he was adversely affected by alcohol. His blood alcohol concentration was 0.191 per cent. He was sentenced to 18 months' imprisonment suspended after four months for two years and disqualified from driving for two years.

Despite his youth, his criminal history shows repetitive commission of offences of dishonesty. He has been in breach of community-based orders. The Community Corrections Officer, while not being generally adversely disposed towards the applicant, questioned whether there was any benefit to the applicant and the community if he were to remain under supervision.

There are also some signs of irresponsibility as a driver in past events. He had one previous conviction for driving under the influence of liquor at .056 per cent; one instance of speeding by more than 30 kilometres over the limit; and his licence was suspended at the end of November 2002 for three months for accumulation of points. He also drove on a number of occasions as a learner without a licensed driver being in the vehicle.

Police on patrol in Warwick on a wet evening observed the vehicle which belonged to a friend of the applicant with its engine revving loudly travelling at 80 to 90 kilometres in the city. The police followed it. The officers saw it go through a roundabout at speed without braking at an intersection where there was a hotel. The vehicle fishtailed at this time. It then entered a railway underpass where it was not easy for the police to see what was happening.

However, when they arrived at the underpass, they saw the vehicle in a damaged condition and debris, including one of its panels, on the road. It was on the wrong side of the road facing oncoming traffic which would have little time to avoid it had there in fact been traffic on the road. Later examination of the road and the underpass suggested that the applicant lost control of the vehicle as it left the roundabout and hit the wall of the underpass.

Police activated the flashing lights and siren of the police vehicle. The applicant's vehicle revved and left the scene reaching a speed estimated at 80 kilometres an hour before it attempted to turn left at speed without braking. The applicant lost control; the vehicle skidded across the road, mounted the footpath and collided with a Give Way sign. When the police arrived, they found the applicant and a female passenger in the vehicle.

Irrespective of the damage caused in the collision, the reports including one from a neuro-psychologist reveal that the applicant had attention deficit disorder as a child and has a significant verbal learning disorder that disadvantages him in aspects of his daily life. There are references in favourable terms the tenor of which is that the applicant is basically good but easily led astray.

vehicle had defective brakes, steering and accelerator cable
although it may be that the applicant was not aware of that
since it was not his vehicle. What has been described
occurred over a distance of only about 200 metres.

In reliance on the matters already mentioned, it was submitted that there were preferable options to imprisoning the applicant, that the actual term of imprisonment was not the last resort and that the community would be better served if the applicant remained in the community. It was submitted that imprisonment was not warranted but, if it was, it should be served by an Intensive Correction Order.

The statement of principle derived from The Queen v. Coake referred to in the previous case of Collier, Court of Appeal 236 of 2003, governs this case. The applicant is slightly older than Collier. He has previous convictions and traffic infringements. There was a passenger in the vehicle who was clearly placed in danger although, fortunately, was apparently not injured.

Lack of judgment in doing what he did may have been contributed to by the problem referred to earlier but, nevertheless and despite things in his favour, I am not persuaded that the sentence imposed by the learned sentencing Judge is wrong in principle or otherwise beyond the range of a proper sentencing discretion. I would therefore refuse the application.

THE CHIEF JUSTICE: I agree.

HELMAN J: I agree.

THE CHIEF JUSTICE: The application is refused.

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