R v McDonald

[1994] QCA 439

[1994] QCA 439

COURT OF APPEAL

PINCUS JA
McPHERSON JA
CULLINANE J

CA No 279 of 1994

THE QUEEN

v.

JOHN PHILLIP McDONALD  Respondent

ATTORNEY-GENERAL OF QUEENSLAND  Appellant

BRISBANE

..DATE 12/09/94

JUDGMENT

PINCUS JA:  Mr Justice Cullinane will deliver the first judgment.

CULLINANE J:  In this matter the respondent was convicted of dangerous driving with a circumstance of aggravation, namely that he was adversely affected by alcohol.  The offence occurred on 4 December 1993 and he pleaded guilty on 9 June 1994. 

He had been convicted on 11 April 1994 before the Circuit Court at Cairns of three offences under the Drugs Misuse Act. He was sentenced to terms of imprisonment of three years on a count of producing a dangerous drug, twelve months on a count of possession of a thing for use in connection with the commission of a crime under the Drugs Misuse Act and imprisonment for three months on a count of possession of a dangerous drug.

The circumstances of the dangerous driving offence were that he commenced drinking on 4 December 1993 at a hotel at
El Arish apparently as a result of learning that the Attorney-General proposed to appeal against a non-custodial sentence in respect of an offence under the Drugs Misuse Act. According to the material placed before the learned District Court Judge the respondent drank until about 8.30 in the evening of
4 December and was seen to drive off on the wrong side of the road at a fast rate of speed.

A police officer who had apparently been notified of what had occurred made a mobile patrol along the Bruce Highway near
El Arish.  The respondent's vehicle was observed by him.  He initially heard it before he saw it.  The police officer sought to have the respondent pull his vehicle over but in fact he accelerated and as he came towards the police officer swerved across the road narrowly missing him. 

According to the material placed before the learned District Court Judge the respondent accelerated his vehicle to a speed of about 170 kilometres per hour and as he attempted to take a turn off the Bruce Highway his vehicle failed to negotiate the corner and came to rest on the side of the road.  The respondent suffered significant injuries as a consequence of the incident.

The sentence which was imposed  was to be served concurrently with the terms of imprisonment to which I have already referred.  These offences were quite unrelated to the offence, the subject of this appeal.  It is my view that some clear and distinct penalty ought to have been imposed in respect of the offence of dangerous driving with the circumstance of aggravation and that the sentence which was imposed is inadequate.  The circumstances surrounding the commission of the offence give cause for concern.  There are some serious aspects of it.

In my view the appropriate course to take is to allow the appeal and to substitute a sentence of twelve months to be served cumulatively with the terms of imprisonment which the respondent is presently serving.

PINCUS JA:  I agree.

McPHERSON JA:  I agree.

PINCUS JA:  The order of the Court will be appeal allowed.  Sentence imposed below replaced by one of twelve months to be served cumulatively with the term of imprisonment already being served.

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