Tschirpig v Martin

[2011] QDC 111

DISTRICT COURT OF QUEENSLAND

CITATION:

Tschirpig v Martin [2011] QDC 111

PARTIES:

AAIDIN GRAEMME TSCHIRPIG
(Appellant)
v
ANDREW J. MARTIN
(Respondent)

FILE NO/S:

323 of 2011

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Holland Park

DELIVERED ON:

6 June 2011 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2011

JUDGE:

 Irwin DCJ

ORDER:

1. Appeal against sentence allowed.

2. The sentence imposed at first instance is set aside.

3. The appellant is sentenced to pay a fine of $700 in default 7 days imprisonment, with the proper officer of the court to give particulars to the State Penalties Enforcement Registry for registration. A conviction is not recorded.

4. The appellant is disqualified from holding or obtaining a driver licence for a period commencing on 6 January 2011 to 6 June 2011.

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where the appellant was convicted on his plea of guilty of driving without due care and attention - where he was sentenced to a fine of $1000 in default 10 days imprisonment, disqualified from holding or obtaining a driver licence for 12 months and a conviction was recorded - where he drove a vehicle involved in a three vehicle collision on a two lane arterial road - where this vehicle crossed the centre line and side swiped another vehicle travelling in the opposite direction - where as a result the second vehicle collided with the third vehicle - where the prosecutor said that the driver of the third vehicle suffered extensive injuries to an arm resulting in the loss of his elbow joint, underwent a number of major surgeries and was unable to work 13 months later - where the appellant was 18 years of age - where he had no traffic or criminal history - where he had not been speeding, affected by alcohol or using his CD player/radio at the time - where a roadside breath test was negative - where he was sentenced on the basis of a momentary loss of concentration - where he had committed no further offences prior to sentencing - where he entered a timely plea of guilty - where he had not driven for a period of approximately five months following his sentence - where it was conceded by the respondent that the length of the disqualification was arguably too great - whether in circumstances where the appellant was charged with driving without due care and attention and not with any offence of which causing injury was an element the magistrate had placed too much weight on the injury caused by his driving and insufficient weight on the nature of the driving charged and the factors in mitigation - whether the sentence was manifestly excessive.

Justices Act 1896 (Qld), s 222(1), s 222(2)(c)

Penalties and Sentences Act 1992 (Qld), s 9(2)(a)(i),
s 9(2)(e), s 11

Dinsdale v The Queen (2000) 202 CLR 321, cited

House v The King (1936) 55 CLR 499, applied

R v Lawley [2007] QCA 243, applied

COUNSEL:

Mr J.A Fraser for the appellant

Ms J.A Cameron for the respondent

SOLICITORS:

Queensland Law Group for the appellant

Queensland Police Services for the respondent

HIS HONOUR:  On 6 January 2011 the appellant was convicted on
his own plea of guilty before the Holland Park Magistrates
Court to one count of driving without due care and attention
contrary to section 83 of the Transport Operations (Road Use
Management) Act 1995.  He was sentenced to a fine of $1,000 in
default of payment 10 days imprisonment and disqualified from
holding or obtaining a driver licence for a period of 12
months.  A conviction was recorded.

It was ordered that the proper officer of the Court give
particulars of the fine to SPER for registration.  The maximum
penalty for the offence is a fine of $4,000 or six months'
imprisonment.  The relevant provision enabling the
disqualification of the appellant's drivers licence is section
187(1) of the Penalties and Sentences Act 1992.

The appeal is brought against the sentence under section
222(1) and (2)(c) of the Justices Act 1886 on the ground that
both the fine and the disqualification period were manifestly
excessive.

The circumstances of the offence which were placed before the
Court by the Police Prosecutor and were not contested in the
submissions made by the appellant's legal representative
before the Magistrate were as follows:  at about 6.05 a.m. on
11 December 2009 the appellant was involved in a three vehicle
traffic collision on the Mt Gravatt-Capalaba Road in Burbank,
Brisbane.  This is a two-lane arterial road traversing in
north-south directions with a maximum speed limit of 80
kilometres an hour.  The weather conditions at the time of the
offence were fine and the road was dry.

The appellant was driving his motor vehicle in a northerly
direction along the road when his vehicle crossed over the
centre white line and side swiped a vehicle which was
travelling in a southerly direction.  As a result of the
collision the other vehicle spun sideways into the path of,
and subsequently colliding with, a third vehicle which was
travelling in a northerly direction.

Police investigations revealed that the appellant was neither
speeding, effected by alcohol, using his mobile phone or his
CD player at the time his vehicle crossed on to the incorrect
side of the road.  A roadside breath test was negative.  The
appellant also said he was not changing radio stations and was
travelling at 70 to 80 kilometres an hour.

The appellant did not not make admissions to driving on to the
incorrect side of the road.  The Police Prosecutor submitted
that, "At the time of this offence the defendant's inattention
is the contributing factor due to his inability to properly
control his vehicle by keeping it within the defined lane and
inability to avoid this collision."

The Prosecutor also advised the Court that the driver of one
of the vehicles involved in the collision suffered extensive
injuries to his right arm resulting in the loss of his elbow
joint.  According to the Prosecutor, he subsequently underwent
a number of major surgeries as a result of the injury,
including a number of bone grafts in an attempt to stabilise
the arm.

The Prosecutor said that at the time of the sentence a period
of approximately 13 months after the offence date this person
was unable to work.  The prosecution did not tender any
medical evidence to the Court in respect of these injuries.

Despite the appellant having no traffic or criminal history
and being 18 years old the prosecution submitted that
considering the injuries sustained by the other road user the
appropriate penalty was a term of imprisonment in addition to
a lengthy disqualification of his driver licence.  Before the
Magistrate his lawyer submitted to the contrary, that despite
these injuries the penalty should be towards the bottom end of
the range including a "short period of disqualification".

In support of this submission he stressed the appellant's
youth, employment as a plumber, lack of criminal or traffic
history, the negative roadside breath test and the fact the
appellant had not been using his mobile phone, CD player or
radio at the time of the driving to which he pleaded guilty.
He also said that the appellant was on his way to work and
wasn't tired.  His instructions were "it may have been at best
a split second of inattention".

In sentencing the appellant, his Honour expressly took in
account a number of mitigating factors which had been referred
to him.  After stating the offence and penalty the next thing
that his Honour said was that the sentencing legislation
provides that he was to take into account the appellant's
early plea of guilty which was on the first return date.  He
specifically referred to sections 9 and 11 of the Penalties
and Sentences Act and said "particularly in respect of a young
offender like you is that a sentence of imprisonment is the
very last resort that the Court should impose."

The reference to section 11 is an indication that his Honour
took into account the appellant's lack of criminal and traffic
history.  In fact, his Honour mentioned this lack of any
previous history later in his sentencing remarks.  His Honour
is an experienced Magistrate and given the short submissions
made by the parties immediately before he imposed sentence it
cannot be suggested he did not take into account the other
factors in mitigation such as the absence of any consumption
of alcohol or reckless behaviour by the appellant.

His Honour also proceeded on the basis that the offence
involved a momentary loss of concentration.  For example, his
Honour said, "There is no real explanation before me except it
seems that you weren't paying attention and you've allowed
your vehicle to move from within its lane to collide with this
other vehicle which have the consequences of another vehicle
being pushed or moved over into the path of ongoing traffic."

His Honour also said, "While it can be suggested it was a
momentary loss of concentration, I don't know what you are
doing."

It is clear that it was the damage which was caused to other
vehicles and, in particular, the injury suffered by the other
driver which influenced his Honour to impose the penalty he
did, despite the factors in the appellant's favour.  His
Honour made reference to his power under section 9 of the
Penalties and Sentences Act to take into account any damage or
injury caused by the appellant.  This was immediately after he
had said that the driver of the other vehicle had a serious
injury which was ongoing and which may well cause him serious
issues for the rest of his life.  Although, he recognised
there was no medical evidence to support this.

There are two bases under section 9 for a Court to have regard
to the physical harm caused by the offender.  These are
section 9(2)(a)(i) and (e) however, his Honour most likely had
in mind section 9(2)(e) which refers both to any damage and
injury caused by the offender.  What his Honour said at this
point was, "One of the factors that section 9 does allow me to
take into account is any damage, injury or - caused by you.
And this is a very clear demonstration of what can happen when
people do not drive with the degree of care and skill that is
expected of them; that being of a normal and prudent driver.
When people go on to the highway, yes, there is some risk, but
every driver expects that other drivers will exercise that
care, and there's simply no explanation.  Your car just moves
out of its lane."

Having said that he did not believe a period of imprisonment
was appropriate his Honour then mentioned, as I have already
said, "While it can be suggested that it was a momentary loss
of concentration, I don't know what you were doing."  And then
went on to say, "It doesn't lessen the effect of the damage
that you have caused, monetarily for the damage that has been
caused to the vehicles, and to this poor man's use of his arm
in future.  The penalties must be significant despite your
lack of any previous history.  You are still only a young man,
and a period of disqualification is appropriate."

Having imposed a penalty his Honour said, "Now, I know this is
a big lesson for you, but I hope that you learn from it.  The
consequences of that disqualification may well be severe for
you employment wise, but nonetheless, it is still appropriate.
And you've got to think that in some respects you are a very
lucky man that you are standing here facing this charge rather
than causing the death of this man.  It is good luck, really,
isn't it?"

On the appellant's behalf it is submitted that the sentence is
manifestly excessive and an appropriate sentence is a fine up
to $500 and either no licence disqualification or no longer
licence disqualification than the appellant has experienced to
date.  The basis of this submission relies on the following
matters:

(i) the appellant entered a timely plea of guilty.  He was not
charged until November 2010;

(ii) the appellant has no criminal history;

(iii) the appellant has no traffic history;

(iv) the appellant has not committed any offences between the
date of the offence and the sentence;

(v) the appellant's youth as he was 18 at the time he
committed the offence;

(vi) there are no aggravating features which attach to the
appellant's driving.  There is no evidence of excessive speed.
There is no evidence of using a mobile phone at the relevant
time.  There is no evidence of any involvement of alcohol as a
cause of the collision.  In the circumstances it would appear
that this is a case of momentary inattention.

On the other hand the respondent submits that the present
offence falls at the upper end of the range in terms of
seriousness.  Given the serious nature of the injuries
sustained by the driver of the other vehicle.  While conceding
the factors in the appellant's favour, including that it was a
case of momentary loss of concentration, it is submitted that
the learned Magistrate was entitled to place significant
weight on the factors in section 9(2)(e) of the Penalties and
Sentences Act, specifically that the appellant's conduct put
other road users at risk and caused serious injury to the
other driver as well as damage to the vehicles involved in the
collision.

In light of these factors and in spite of the mitigating
factors, it is the respondent's submission that the fine of
$1,000 was not excessive in the circumstances considering the
maximum fine which could have been imposed was $4,000 or six
months' imprisonment.

Furthermore, it was the respondent's submission in the written
outline provided that the learned Magistrate's imposition of a
driver licence disqualification for a period of 12 months was
an appropriate exercise of the sentencing discretion.
However, it was conceded in argument that I could
appropriately conclude that the length of the disqualification
was arguably too great.  The respondent submits that the
Magistrate took into account a number of mitigating factors to
which I have already referred.

In conclusion, the respondent submits with reference to the
factors identified by the High Court in House v King [1936] 55
CLR 499 at 504-505 in determining whether to interfere with
the exercise of a sentencing discretion there is nothing to
suggest in this case that his Honour acted upon a wrong
principle, allowed extraneous or irrelevant material to guide
or affect him, mistook the facts or did not take into account
some material consideration.

I accept that as was said by Keane JA in R v Lawley [2007] QCA
243 with whom the other members of the Court of Appeal agreed
at paragraph 18, the sentence of the learned sentencing
Magistrate involved the exercise of a discretion which this
Court may not interfere with unless it involves and error of
the kind identified in House v The King.  As his Honour went
on to say in that case, "It is not a sufficient basis for this
Court to intervene that it might have struck a different
balance between the competing considerations which had to be
weighed in the exercise of the discretion."

However, his Honour went on to say that in some cases the
sentence imposed is so "unreasonable or unjust" in the
circumstances that it can be inferred that an error has
occurred as was emphasised in Dinsdale v The Queen, but he
recognised that the Court may only intervene when the error is
apparent.  Therefore, in some cases it can be inferred that an
error has occurred on the basis that the sentence imposed is
unreasonable or unjust provided that error is apparent.  If
so, this was a sufficient basis for this Court to intervene.
In my view this is such a case.  Whatever may be said about
the application of the factors identified in House v The King,
I consider that notwithstanding the nature of the injuries
suffered by the other driver, the unspecified damage to the
other vehicles and the risk to other motorists as a result of
the appellant's driving, the total sentence which involved
recording a conviction, imposing a $1,000 fine and a
significant period of licence disqualification of 12 months is
unreasonable and unjust in the circumstances which have been
identified and relied upon by the appellant.

Although the learned Magistrate was entitled to take the
circumstances relied on by the respondent into account and in
particular the injury suffered by the other driver, it is
essential to remember that the appellant was convicted of
driving without due care and attention and not of causing the
injury which was a consequence of this driving.  In my view it
is apparent in this case that his Honour placed too great a
weight on this and not enough weight on the other factors that
I have mentioned and which are relied upon by the appellant.
In particular, his Honour did not place sufficient weight on
the fact that the appellant was not charged with dangerous
driving or with any circumstance of aggravation relating to
the injury to the other driver.

In fact, the danger of placing excessive weight on this factor
is illustrated by the respondent's own submission where it is
said in support of its submission that the appellant fell to
be sentenced in the upper end of the range and that it might
perhaps be thought that the appellant was fortunate to have
not been charged with a more serious offence of dangerous
operation of a motor vehicle causing grievous bodily harm in
light of the injuries caused as a result of this conduct.
This is irrelevant where the appellant is not charged with
this offence or any offence of which the injury is an element.
The fact that the Magistrate may, in error, have proceeded on
this basis is suggested by that part of his sentencing remarks
which as previously stated were as follows, "And you've got to
think that in some respects you are a very lucky man that you
are standing here facing this charge rather than causing the
death of this man.  It is good luck, really, isn't it?"
I note that his Honour did not follow these remarks by
immediately making clear that he was not sentencing him on the
basis of such potential consequences.

To summarise, it is my view that the sentence imposed
demonstrates that the learned Magistrate placed too much
emphasis on the injury suffered by the other driver and did
not place sufficient weight on the nature of the driving with
which the appellant had been charged, namely, of momentary
inattention and also did not place sufficient weight on the
substantial mitigating factors in his favour.  The fact that a
conviction was recorded against an 18 year old in a case of
momentary inattention and where he had no traffic or criminal
record, and it is appropriately conceded that the licence
disqualification was arguably too lengthy having regard to the
nature and the circumstances in which the offence was
committed, reflects on the overall exercise of the
sentencing discretion.  It demonstrates that the error
involved in this aspect of the sentence also affected the
quantum of the fine imposed.

In these circumstances it is appropriate that I set aside the
orders of the learned Magistrate and resentence the appellant.
Having regard to the factors relied upon on his behalf,
including the fact that he has not driven from the date of the
sentence on 6 January 2011 to and including today, 6 June
2011, a period of approximately five months, I consider that
the appropriate exercise of the sentencing discretion is not
to record a conviction, to impose a fine of $700 and a drivers
licence disqualification for the period commencing 6 January
2011 to and including 6 June 2011.

Accordingly, having concluded that the sentence imposed by the
learned Magistrate was manifestly excessive, the order of the
Court is:

(1) appeal against sentence allowed;

(2) the sentence imposed at first instance is set aside;

(3) the appellant is sentenced to pay a fine of $700 in
default seven days imprisonment with the proper officer of the
Court to give particulars to SPER for registration.  A
conviction is not recorded;

(4) the appellant is disqualified from holding or obtaining a
driver licence for a period commencing 6 January 2011 to and
including 6 June 2011.

I make it clear that if it was not for the passage of this
period of approximately five months from the date that the

disqualification commenced I would have imposed lesser
disqualification period of between one and three months.  I
also make it clear in case it be necessary, that the intention

of the order is that the appellant has completed his drivers
licence disqualification as of today and it is not to be
interpreted that he is subject to a disqualification for the
equivalent period of time commencing from this date.

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