Schutt v Olsen

[2006] QDC 248

DISTRICT COURT OF QUEENSLAND

CITATION:

Schutt v Olsen [2006] QDC 248

PARTIES:

HALEY MELISSA SCHUTT

Appellant

and

JOHN WILLIAM OLSEN
Respondent

FILE NO:

D8 of 2005

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Gympie

DELIVERED ON:

2 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 & 16 June 2006

JUDGE:

Dearden DCJ

ORDER:

Appeal Against Sentence Dismissed

CATCHWORDS:

APPEAL – Appeal Against Sentence – Failure to Record Conviction

Penalties and Sentences Act 1992 ss 9, 12

R v Melano [1995] 2 Qd R 186

R v Mladenovic, ex parte Attorney-General [2006] QCA 176

COUNSEL:

Ms B Merrin for Appellant

SOLICITORS:

Director of Public Prosecutions for Appellant

Respondent (Mr J Olsen) in person

Introduction

1. The appellant, Hayley Schutt, appeals against sentences imposed upon the respondent, John Olsen, on the grounds that the sentence imposed was manifestly inadequate, and that convictions should have been recorded.

1. The respondent, upon entering pleas of guilty, was sentenced in the Gympie Magistrates Court on 15 April, 2005, as follows:

Charge	Details	Penalty
(1)	Failure to supply sample of breath (18 February 2005)	Fined $200, in default 2 days imprisonment.  6 months to pay.  No conviction recorded
(2)	Driving under the influence of liquor	Fined $1,000, in default 10 days imprisonment.  6 months to pay.  Disqualified from holding or obtaining a licence for 12 months.  No conviction recorded

Facts

1. At 9am on 18 February, 2005, police observed a blue Nissan sedan parked on the side of the road of the Bruce Highway near Marlborough.  Police had been notified by a motorist concerned about the respondent’s manner of driving and had managed to get the respondent to pull over and stop his vehicle.  When police arrived, the respondent was seated in the driver’s seat with the seatbelt on, and an open bottle of VB [beer] in a green stubby cooler was between his legs.  The keys were in the ignition, music was playing and the vehicle bonnet was hot to touch.  The respondent admitted attempting to drive the vehicle, and upon direction, on three attempts failed to provide a roadside specimen of breath, stating he didn’t have enough lung capacity to blow into the breath analysis instrument for long enough.  The respondent was arrested and taken to Rockhampton Police Station where a breath analysis certificate (produced as a result of a breath test on an authorised breath analysing instrument) showed a reading of 0.212%[1].

   [1] Sentencing submissions T p 4

1. The prosecution on the Magistrates Court sentence hearing tendered the respondent’s criminal history, which had two minor and irrelevant entries, and a traffic history with (relevantly) the following entries:

Date	Court	Offence	Result
31 March 2003	Mackay Magistrates Court	Drive Under the Influence of Liquor (0.225%)	Fined $1,400 and disqualified 14 months
30 April 1991	Toogoolawah Magistrates Court	Drive Under the Influence of Liquor	Fined $800, disqualified 10 months

1. No submissions were made by the prosecutor on the sentence hearing in respect of penalty.

1. The respondent, who appeared unrepresented both at the sentence, and on this appeal, informed the learned sentencing Magistrate that he had admitted he was an alcoholic, had approached Alcoholics Anonymous, and had obtained a sponsor.  The respondent explained that, difficult as it was working in the mines, he was avoiding the consumption of alcohol.  He informed the court that even his employer had offered him support with respect to his alcoholism[2].  The respondent advised the learned Magistrate that he was working for a drilling company, and asked if the learned Magistrate could “waive the conviction” because “working in the mines” … “as soon as they hear that [i.e. a conviction] you’re out” and he (the respondent) had “a lot of bills”[3].  The prosecution did not respond to the submission by the respondent in respect of recording convictions.

   [2] Sentencing submissions T pp 5-6

   [3] Sentencing submissions T p 3

1. The learned Magistrate imposed fines of $200 (in respect of the failure to supply a sample of breath) and $1,000 (in respect of driving under the influence of liquor), allowed 6 months to pay both fines, disqualified the respondent for 12 months on the ‘driving under the influence’ charge, and specifically did not record convictions in respect of both charges.  No reasons were articulated by the learned Magistrate either in respect of the quantum of the fines, the length of the licence disqualification, or the non-recording of convictions. That , of course, is not surprising given the nature of the charges, and the time constraints which arise from the volume of matters dealt with in the Magistrates Court jurisdiction.

The Law

1. Put very simply, the issue on a prosecution appeal such as this is whether the sentence appealed against was “outside the sound exercise of the sentencing [court’s] discretion”[4].  Put another way, to justify appellate court intervention, “the appellate must establish error in the exercise of the sentencing Judge’s discretion”[5].  Mere tinkering with a sentence is, of course, unacceptable on the part of an appellate court.

   [4] R v Melano [1995] 2 Qd R 186, 190

   [5] R v Mladenovic, ex parte Attorney-General [2006] QCA 176 per McMurdo P at para 15

Decision

1. The fines imposed were, in my view, clearly within the range of a sound sentencing discretion.  No Magistrate is bound by the level of fines imposed by other Magistrates for the same or similar offences, even where such matters appear (as here) in a prior criminal or traffic history.  The fines imposed were substantial and complied with the relevant sentencing principles set out in the Penalties and Sentences Act 1992 (PSA) s 9. The licence disqualification period was, in my view, equally unexceptional.

1. The non-recording of convictions by the learned Magistrate was the exercise of a discretion pursuant to PSA s 12. The respondent made submissions on which such a discretion could properly be exercised. The prosecutor at the sentence made no submissions in response. Although such a course may be unusual in respect of charges such as this, I am not persuaded that the learned Magistrate was in error in respect of the exercise of that sentencing discretion.

Conclusion

1. The appeal against sentence is dismissed.

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