R v Stansbury

[2003] QCA 48

SUPREME COURT OF QUEENSLAND

CITATION:	R v Stansbury [2003] QCA 48
PARTIES:	R v STANSBURY, Darrly Francis (applicant)
FILE NO/S:	CA No 417 of 2002 DC No 2046 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED EX	18 February 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2003
JUDGES:	Davies and Williams JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – DRIVING OFFENCES – where applicant convicted of dangerous operation of a motor vehicle with a circumstance of aggravation, wilful damage and serious assault – where applicant sentenced to two and a half years imprisonment and five year licence disqualification – whether manifestly excessive
COUNSEL:	The applicant appeared on his own behalf R G Martin for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

PHILIPPIDES J: This is an application for leave to appeal against a sentence imposed on the applicant on the ground that the sentence was manifestly excessive. On 19 November 2002 the applicant pleaded guilty to one count of dangerous operation of a motor vehicle with a circumstance of aggravation, one count of wilful damage and one count of serious assault.

The applicant, who was 33 years of age at the time the offences were committed, was sentenced to two and a half years imprisonment for the offence of dangerous driving and was disqualified from holding or obtaining a drivers licence for five years and was sentenced to six months' imprisonment for each of the other two offences. All sentences were ordered to be served concurrently.

The offences resulted from incidents which took place on 15 mounted a roundabout causing a tyre to blow out and eventually collided into a fence.

December 2000. At about 9 a.m. on that morning the applicant
was driving a vehicle with false plates on Logan Road. Police
attempted to pull the applicant over by activating their
lights and siren, however, the applicant accelerated and sped
away. There followed an extensive police chase through
various back streets and car parks. On numerous occasions the
applicant drove on the wrong side of the road forcing oncoming
traffic off the road. He also drove onto the footpath to
avoid being delayed by vehicles stopped at lights and reached
speeds of up to 140 kilometres per hour. He drove through red
lights and on one occasion after driving through a red light
veered across two empty lanes and drove directly at a woman
pushing a pram, forcing the woman to dodge out of the way to
avoid the vehicle running her and her child over. Numerous
other vehicles were forced off the road in further high speed
driving.
The applicant was eventually stopped by vehicles which were
stationary at a red light. As a police car pulled up behind
him he reversed into it causing some $1,400 worth of damage to
the police car. That damage is the subject of the second
count. There was then further high speed driving which
involved driving on the wrong side of the road with traffic
having to swerve to avoid collision. During this stage the
applicant reached speeds of up to 120 kilometres per hour.

The applicant then alighted and fled on foot, pursued by police. When called upon to stop, the applicant challenged the police to a fight. He struck one police officer and fought him to the ground. That is the subject of the third count.

Tests performed on the applicant after he was arrested revealed that he had consumed various drugs including heroin and a considerable amount of methylamphetamine. The applicant was unlicensed and was driving a vehicle which was unregistered in addition to having false number plates. He declined to be interviewed. His motive for fleeing was that his female passenger had a warrant out for her arrest.

The learned sentencing Judge described the applicant's driving as a very serious example of dangerous driving which had occurred in city streets at a time when there was a large volume of traffic about. His Honour had regard to the applicant's criminal history, which included a number of convictions for driving offences including a conviction for dangerous driving in New South Wales for which he was sentenced to a period of imprisonment. The maximum sentence for the offence of dangerous driving is five years imprisonment. His Honour considered that a head sentence of four years' imprisonment was warranted, however, his Honour reduced that sentence to one of two and a-half years to allow for matters of mitigation, including the plea of guilty, the applicant's attempts whilst in custody to address his drug dependency and the time he had already spent in custody, being some 300 days, in respect of which his Honour considered no declaration could be made.

The applicant submitted that the sentence imposed was sentencing Judge in respect of the period of presentence custody revealed any error. His Honour was unable to make a declaration under section 161(1) of the Penalties and Sentences Act 1992 in respect of the entirety of that period of custody because the custody related not only to the offences the subject of this appeal, but also other offences including drug and summary offences. Nor can it be said that his Honour failed to consider adequately the applicant's attempts to rehabilitate himself by addressing the matters of drug and substance abuse. It was a matter specifically referred to by his Honour and was appropriately reflected in the reduction of the head sentence.

manifestly excessive based on two grounds. Firstly, it was
said that the approach taken by the learned sentencing Judge
in reducing the head sentence by taking into account the
period already spent in custody disadvantaged the applicant by
postponing his release date. The applicant contended that the
period of presentence custody should have been backdated.
Secondly, the applicant submitted that in imposing the
sentence insufficient account was given to the applicant's
efforts to address his drug dependency and thereby to
rehabilitate himself. In this regard the applicant referred
in written submissions to various drug rehabilitation programs
he had attended.

The applicant in addition submitted that comparative cases indicated that a suspended sentence should have been imposed, given the period of presentence custody and the matters of mitigation. I do not consider that the learned sentencing Judge erred in failing to take this course. A period of imprisonment was entirely appropriate in this case. In those circumstances, I consider that the sentence imposed was within the learned sentencing Judge's discretion and cannot be said to be manifestly excessive. I would refuse leave.

DAVIES JA: I agree.

WILLIAMS JA: I agree. sentence is refused.

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