R v Smith

[2004] QCA 126

SUPREME COURT OF QUEENSLAND

CITATION:	R v Smith [2004] QCA 126
PARTIES:	R v SMITH, Geoffrey William (applicant)
FILE NO/S:	CA No 88 of 2004 DC No 48 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED EX TEMPORE ON:	22 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	22 April 2004
JUDGES:	de Jersey CJ, Jerrard JA and Holmes J Separate reasons for judgment of each member of the Court, Jerrard JA and Holmes J concurring as to the orders made, de Jersey CJ dissenting
ORDER:	The sentence imposed in the District Court on 1 April 2004 be varied to provide that the sentence of 15 months’ imprisonment be suspended forthwith for an operational period of three years, the operational period to date from 1 April 2004
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 GRANTED – PARTICULAR OFFENCES – OTHER OFFENCES – where applicant pleaded guilty to the dangerous operation of a motor vehicle while adversely affected by alcohol – where sentenced to 15 months’ imprisonment suspended after four months for a period of two years – where applicant appeals on the ground that the sentence was manifestly excessive – whether the sentence is excessive having regard to comparable cases
R v Coake [1999] QCA 12, CA No 403 of 1998, 5 February 1999, considered R v Collier [2003] QCA 314, CA No 236 of 2003, 24 July 2003, considered R v Gehrman [2002] QCA 261, CA No 192 of 2002, 25 July 2002, considered R v Harch [2003] QCA 315, CA No 237 of 2003, 24 July 2003, considered R v Harvey-Sutton [2003] QCA 229, CA No 83 of 2003, 27 May 2003, considered R v Parker [2003] QCA 316, CA No 139 of 2003, 24 July 2003, considered R v Simpson [2001] QCA 109, CA NO 309 of 2000, 21 March 2001, considered
COUNSEL:	I A Entriken for the applicant B G Campbell for the respondent
SOLICITORS:	Clewett Corser & Drummond for the applicant Director of Public Prosecutions (Queensland)

THE CHIEF JUSTICE:  The applicant pleaded guilty on an ex officio indictment in the District Court to the dangerous operation of a motor vehicle while adversely affected by alcohol.

An hour after ceasing driving his blood alcohol concentration was .182.  In the context of a maximum penalty of five years' imprisonment he was sentenced to 15 months' imprisonment suspended after four months for a period of two years and he was disqualified from holding or obtaining a driver's licence for two and a half years.  He seeks leave to appeal on the ground the penalty is manifestly excessive.

At the time of the offence, which was committed on the 22nd of August 2003, the applicant was 54 years of age.  He is an avionics technician with a good employment…