R v Kirby; Ex parte A-G (Qld)

In the case of R v Kirby; Ex parte A-G (Qld), the Attorney-General for Queensland sought an appeal against the sentence imposed on the respondent, Kirby, who had pleaded guilty to charges of dangerously operating a motor vehicle whilst adversely affected by alcohol and driving over the general alcohol limit. The respondent was sentenced to six months imprisonment, suspended immediately, for the indictable offence and six months imprisonment, to be served as an Intensive Correction Order, for the summary offence. The respondent was also disqualified from holding or obtaining a driver’s licence absolutely. The Attorney-General argued that the sentence was manifestly inadequate, did not adequately reflect the gravity of the offence, failed to sufficiently consider general deterrence, and that the sentencing judge gave too much weight to mitigating factors.

The court was required to determine whether the sentence imposed was manifestly inadequate and whether the sentencing judge erred in their assessment of the respondent’s criminal and traffic history, as well as the relevance of subsequent offences. The court had to consider whether the sentence failed to adequately reflect the gravity of the offence and sufficiently take into account the aspect of general deterrence. The court also needed to assess whether the sentencing judge gave too much weight to the factors going to mitigation of sentence and whether the sentence should have included a short term in actual custody. Additionally, the court had to consider whether the sentencing judge erred in treating the subsequent offences as largely irrelevant.

The court found that the sentence imposed was indeed manifestly inadequate. It held that the sentencing judge had failed to adequately reflect the gravity of the offence and sufficiently take into account the aspect of general deterrence. The court found that the sentencing judge had given too much weight to mitigating factors, particularly the respondent’s plea of guilty and the absence of any injuries caused by the incident. The court also found that the sentencing judge had erred in treating the subsequent offences as largely irrelevant. The appeal was allowed, and the sentence for the summary offence was varied to three months imprisonment, wholly suspended forthwith for an operational period of four years. The sentence for the indictable offence was set aside, and the respondent was re-sentenced to a term of six months imprisonment, to be served as an Intensive Correction Order. The respondent was also required to comply with the requirements in s 114(1) of the Penalties and Sentences Act 1992 (Qld) and report within 48 hours to an authorised Corrective Services Officer at Stones Corner, Brisbane.