Todd v Combo

[2008] QDC 146

[2008] QDC 146

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE EVERSON

No 3247 of 2007

STEPHEN CRAIG TODD,	Applicant
DAVID THOMAS MILBURN, CHRISTOPHER GEOFFREY LAWSON, PAUL ANDREW ALGIE and KELLIE ANNE BARROW
and
RORY GENE COMBO	Respondent
BRISBANE ..DATE 06/05/2008
ORDER

06052008 D.1 T(3)06-08/SLA(BNE) M/T BRIS26 (Everson DCJ)

HIS HONOUR: This is an appeal pursuant to section 222 of the	1
Justices Act 1886. It has been brought by the Crown in respect of a sentence imposed on the defendant on 26 September 2007 in the Magistrate's Court at Brisbane, sitting as the Murri Court. The defendant pleaded guilty to numerous

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offences which involved multiple traffic offences. He pleaded
guilty to driving under the influence of alcohol in excess of
three times the legal limit on four separate occasions over a
six month period, from 17 September 2006. This occurred

whilst he was disqualified from driving.

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On two of these occasions, the defendant failed to provide his correct name to police. On one of these occasions he was also speeding to the extent of travelling at 116 kilometres per

hour in a 60 kilometre per hour zone. On a separate occasion

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on 11 August 2006, the defendant was found sitting in the
driver's seat of a car, where upon breath tests administered
by the police, revealed a blood alcohol reading of .126 per

cent.

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Previously, he had been disqualified from driving for 15 months by an order of the Brisbane Magistrate's Court. The facts of this case are not in dispute and stem from a schedule of facts which was tendered by consent at the hearing at first instance. The appeal is brought in circumstances where the

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defendant was sentenced to imprisonment for a term of 17 months, but given an immediate parole release date of 26 September 2007. He was also disqualified from driving for a

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06052008 D.1 T(3)06-08/SLA(BNE) M/T BRIS26 (Everson DCJ)

period of four years, having regard to various of the offences	1
for which he was sentenced.
The appeal is brought in circumstances where the Crown contends that the head sentence of 17 months imprisonment was

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adequate, however, that the ordering a parole release date on
the date the sentence was imposed was manifestly inadequate
because it fails to reflect adequately the gravity of the
offences and the defendant's antecedent criminal history.

Further, that it failed to take sufficiently into account the

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concept of general deterrence and that the sentencing mitigation.

Before me today, the third ground of appeal has not been

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pressed. However, the other two have been rigorously argued relating to motor vehicle offences, which is Exhibit 1 before me. These offences include multiple offences for which he was
by Ms Rutherford, who appears on behalf of the appellant.

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punished on the 1st of October, 1999, including two counts of
dangerous operation of a vehicle causing death or grievous
bodily harm. These charges resulted in him being convicted
and imprisoned for a period of six years. Regrettably, also,

this particular sentence occurred in the context of sentences

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relating to motor vehicles ranging from the 19th of April 1996
to the 2nd of September 2002.
06052008 D.1 T(3)06-08/SLA(BNE) M/T BRIS26 (Everson DCJ) 3 ORDER 60

Ms Rutherford has also relied upon a number of comparative	1
decisions. Firstly, she refers to the decision of the Crown and McGuire [2002] QCA 439, a decision of the Queensland Court of Appeal. Significantly, the Court of Appeal said at page 8 of the decision that in a case such as the one under

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consideration by me, deterrence is an important factor, and

further went on to state:-

"A review of comparable sentences of this Court clearly

shows that ordinarily, offenders who drive dangerously at

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speed on a major highway with a blood alcohol level in
excess of 0.15 and to cause potentially serious injuries
to others will receive a substantial punishment which

includes a period of actual imprisonment."

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A similar approach is evident in the other decisions to which I have been taken. Essentially, Ms Gilbert who appears on behalf of the defendant doesn't quibble with the fact that for offences of the type for which the defendant was sentenced, a period of imprisonment should have been imposed. However, she

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submits that the learned Magistrate took this into account in
imposing the head sentence, but took the view that the
prospects of rehabilitation of the defendant were best
achieved by his immediate release on parole. In this regard,

I note that there is no material before me which suggests that

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the defendant has not been completely compliant with the terms
of the parole order made on the day he was sentenced.
06052008 D.1 T(3)06-08/SLA(BNE) M/T BRIS26 (Everson DCJ) 4 ORDER 60

Ms Rutherford submits that the parole release date was	1
manifestly inadequate and that the parole release date should have been after 180 days was spent in custody, taking into account the notional one-third reduction of sentence for the early plea of guilty and comparative decisions, one of which I

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have referred to above.

Ms Gilbert points to the fact that the decision of the defendant that he will not be going to gaol. However, she

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concedes that upon the making of the order giving leave to
appeal to the Crown on 25 January 2008 the defendant has known
of the Crown's position and of the possibility of him
receiving a custodial sentence in respect of which he will be

required to actually spend time in goal.

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I am of the view that the respondent's history of motor vehicle offences and, in particular, his repeated history of serious drink driving offences is such that he can only be described as a menace on the road and a threat to the

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community. I am of the view that the gravity of the offences
and his antecedent criminal history, particularly that
relating to serious motor vehicle offences, is such that the
decision not to require the respondent to serve a period of

actual imprisonment was such that the decision of the learned

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Magistrate resulted in a penalty which was manifestly
inadequate.
06052008 D.1 T(3)06-08/SLA(BNE) M/T BRIS26 (Everson DCJ) 5 ORDER 60

Furthermore, the relevant decisions make it clear that with	1
regard to offences of this type, particularly having regard to the risk that offending behaviour of this type poses to the general community, deterrence is a significant consideration. As this appeal merely focuses upon the question of whether or

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not a period of actual imprisonment should have been imposed
and what that should be, I do not propose to go into detail in
respect of the other aspects of the sentence imposed upon the
defendant, which do not appear to be directly relevant to the

determination of this appeal.

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I order as follows:
(1) the appeal is allowed;
(2) that the sentence imposed by the Magistrate's Court at

Brisbane on 26 September 2007 be varied by vacating the order

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that the defendant be released on parole as at the 26th day of that the respondent be released on parole at the date by which the respondent has served 180 days imprisonment following his being taken into custody in relation to this sentence. As the

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respondent has not yet been taken into custody, it is
impossible for me to set a more precise date in this regard;
(3) I order that a warrant issue for the arrest of the

respondent, such warrant to lie in the registry for 48 hours.

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