R v Manion

[2005] QCA 5

SUPREME COURT OF QUEENSLAND

CITATION:

R v Manion [2005] QCA 5

PARTIES:

R
v
MANION, Douglas Geoffrey
(applicant/appellant)

FILE NO/S:

CA No 407 of 2004
DC No 344 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough

DELIVERED EX TEMPORE ON:

2 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2005

JUDGES:

de Jersey CJ, Williams JA and Mackenzie J
Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal against sentence and appeal allowed

2. Vary the orders made in the District Court on 10 November 2004 to delete the requirement that the sentences in respect of the fraud counts be served cumulatively upon the sentences in respect of the driving offences

3. All terms of imprisonment imposed on 10 November 2004 to be served concurrently

4. Declare that the appellant is entitled to be released from custody on 2 February 2005

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – DRIVING OFFENCES – SO UNDER INFLUENCE OF LIQUOR OR DRUGS AS TO BE INCAPABLE OF CONTROL – whether imprisonment for driving offences was manifestly excessive

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – whether ordering imprisonment for summary driving offences be served cumulatively upon imprisonment for fraud offences rendered the outcome manifestly excessive

COUNSEL:

The applicant/appellant appeared on his own behalf
R G Martin SC for the respondent

SOLICITORS:

The applicant/appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE:  The applicant was on the 10th of November 2004 sentenced following pleas of guilty to nine months and 12 months' imprisonment for respectively two counts of fraud, those terms to be served concurrently, but cumulatively upon one month's imprisonment imposed for the offences of drink driving, disqualified driving and failure to supply a specimen of breath.  At the time of this offending the applicant was in his late fifties. 

He does not pursue his application for leave to appeal against the sentences imposed on the counts of fraud but submits that the one month term to be served cumulatively, in effect, imposed for the driving offences was harsh and excessive. 

The fraud involved his receiving money from business concerns for advertising promised but not provided.  Those offences occurred between March 2002 and December 2003.  The driving offences occurred on 26 February 2004 as the applicant was intending to leave a hotel car park.  He sought to avoid supplying a breath specimen but eventually did at the police station and the reading was .12.  His licence, as he knew, was suspended at the time of his attempting to exit the car park. 

He had similar previous convictions but they were old, recorded in 1978 and 1980.  At the time of these driving offences he was on bail.

The learned Judge, as I have said, made orders requiring the applicant to serve one month’s imprisonment for the driving offences and then cumulatively nine and 12 months' imprisonment concurrently in respect of the counts of fraud.  He said,

"So far as the three summary matters are concerned I make the same order in respect of each of them, namely that you be imprisoned for one month.  Both sentences will be concurrent one with the other.  So far as the fraud matters are concerned on count 1 I order that you be imprisoned for nine months and on count 2 I order that you be imprisoned for 12 months.  Those sentences to be concurrent one with the other but cumulative upon the sentence in respect of the driving offences.  I order that those sentences be suspended after four months for an operational period of three years."

The applicant had been in custody for 38 days referable to this offending and a declaration was made in respect of that.  He was taken into custody on the 3rd of October 2004.  The period of four months in respect of the suspension expires today, the 2nd of February 2005.  There has been some debate as to the clarity of expression of the orders made by the learned Judge. 

That aside, to my mind this case should be resolved in this way.  Had the applicant come to be sentenced for the driving offences in the absence of a fraud context it is highly unlikely that he would have been imprisoned.  It seems to me that not only to imprison him but to order then that the penalty for the fraud operate cumulatively upon the term of imprisonment in respect of the driving offences did, with respect to the learned sentencing Judge, render the outcome manifestly excessive.

I would accordingly allow the application and vary the orders made in the District Court on the 10th of November 2004 to delete the requirement that the sentences in respect of the fraud counts be served cumulatively upon the sentences in respect of the driving offences.  I would order, therefore, that all of the terms of imprisonment imposed on the 10th of November 2004 be served concurrently and to avoid any residual doubt I would declare that on the orders so varied the applicant is entitled to be released from custody today, the 2nd of February 2005.

WILLIAMS JA:  In structuring a sentence involving making sentences cumulative and ordering suspension of the sentence after a period, sentencing Judges should take care to avoid possible ambiguity in construing the sentence.  The question may arise whether the suspension applies to the totality of the cumulative sentence or only to one component thereof.  I agree with all that has been said by the Chief Justice.  In my view leave to appeal should be granted, the appeal should be allowed to the extent of varying the order that the one month period of imprisonment for the summary offences be served concurrently with the sentence for the fraud and not cumulatively.

MACKENZIE J:  I can add nothing further to what has been said by the Chief Justice and Justice Williams.  I agree with the orders proposed by them.

THE CHIEF JUSTICE:  The orders are as I indicated.

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