Woolens v The Commissioner of Police

[2004] QDC 466

DISTRICT COURT OF QUEENSLAND

CITATION:

Woolens v The Commissioner of Police [2004] QDC 466

PARTIES:

BARRY MICHAEL WOOLENS
Appellant
v
THE COMMISSIONER OF POLICE
Respondent

FILE NO:

6 of 2002

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court, Ipswich

DELIVERED ON:

15 November 2004

DELIVERED AT:

Ipswich

HEARING DATE:

15 October 2004

JUDGE:

Richards DCJ

ORDER:

The appeal is allowed.The original sentence is set aside.The appellant is ordered to serve 51 days imprisonment. Pursuant to s 161 of the Penalties and Sentences Act,it is declared that 51 days spent in pre-sentence custody from 11 March 2002 to 30 April 2002 be deemed to have been already served under the sentence.The sentence is otherwise to remain        .

CATCHWORDS:

Drink driving - penalty

COUNSEL:

Mr West for the appellant

Mr Lehane for the respondent

SOLICITORS:

Brown & Baker for the appellant
DPP for the respondent

1. On 8 March 2002 the appellant committed an offence of driving whilst under the influence of liquor.  His reading on that occasion was .231%.  He had by his own admission consumed three large bottles of XXXX heavy beer and had not eaten for days.  He was living at the Riviera Caravan Park and had driven from Karana Downs. 

1. On the afternoon of 9 March 2002 he committed a further offence of driving whilst under the influence of liquor.  His reading on that occasion was .258%.  His was visiting his sister at Karalee to borrow money to pay rent at the Caravan Park. 

1. He had a history of drink driving and in each case had been dealt with by way of a fine. 

1. The matter was adjourned from 11 March to 2 April 2002 so that a pre-sentence report could be obtained and the appellant was remanded in custody.  The pre-sentence report revealed that he had shown genuine remorse, he had sold his motor vehicle and had resolved never to reapply for a driver’s licence. 

1. There is a family history of alcoholism and both verbal and physical abuse and neglect.  He had had a solid and successful work history and had developed a chronic alcohol problem in the wake of the breakdown of his marriage.  He had had previous treatment for alcoholism and attempts were made to deal with it in the context of the support network which he had but those attempts had failed. 

1. He had a number of significant medical problems, namely, Perthes disease resulting in two hip replacements, asthma, hypertension, osteoarthritis, carpel tunnel syndrome, torn ligaments in the left shoulder, a mild stroke, alcohol dependence syndrome, benzodiazepine’s dependent syndrome, impaired thinking, memory and concentration.

1. An unsatisfactory pre-sentence report was provided in that it indicated that because it would be difficult for him to access community programs, he would be better in jail where he could access the programs offered in jail, however, as he had already served a month of that sentence on remand any appropriate term of imprisonment was not likely to be long enough for him to access treatment whilst in the jail environment.

1. The magistrate said that he took into account the plea of guilty, the pre-sentence report and his previous traffic history and then concluded that a sentence of jail was the only appropriate sentence. 

1. However, even though the appellant had a high reading in relation to the offences, given the amount of time that he actually spent in custody, a sentence of actual imprisonment was manifestly excessive. 

1. The Crown in its submissions has conceded that the sentence was manifestly excessive and has joined in the submission that a sentence of time already served is the appropriate sentence in the circumstances. 

1. The appellant has spent 51 days in custody and that does seem to be a substantial sentence for an offence which involved no danger to the public.

ORDER

The appeal is allowed. The original sentence is set aside. The appellant is ordered to serve 51 days imprisonment. Pursuant to s 161 of the Penalties and Sentences Act,  it is declared that 51 days spent in pre-sentence custody from 11 March 2002 to 30 April 2002 be deemed to have been already served under the sentence.  The sentence is otherwise to remain.