Collier v Commissioner of Police [2012] QDC 374

1 [2012] QDC 374 DISTRICT COURT APPELLATE JURISDICTION JUDGE GRIFFIN SC No 1282 of 2012 BEN EDWARD JAMES COLLIER Appellant and COMMISSIONER OF POLICE Respondent BRISBANE ..DATE 03/09/2012 ORDER -- 1 of 5 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is the matter of Collier v. The Commissioner of Police. The appellant pleaded guilty in the Caboolture Magistrates Court on the 27th of February 2012 to two charges of dangerous operation of a motor vehicle. He was sentenced to a period of nine months' imprisonment with parole release after having served three months in custody. That is, parole release was ordered on the 27th of May 2012. The applicant was also disqualified from holding or obtaining a driver's licence for a period of 18 months. The personal circumstances of the applicant are that he was born in Brisbane on the 14th of July 1983 and was about 26 years of age at the time of committing the offence and was at the time of hearing 28 years of age or thereabouts. He has a Queensland criminal and traffic history. As to the traffic history, it is unedifying, to say the least, with speeding offences peppered through the history. It is not, however, the most serious history that one unfortunately sees often in persons either convicted of or appealing from decisions in case of dangerous operation of a motor vehicle. It is nonetheless a substantial history. That is conceded fairly enough by the legal representative for the applicant. The appeal is based on the sentence being manifestly excessive in that the Magistrate erred in taking into account facts of an uncharged act. Having regard to the approach which I've taken, it's not necessary for me to find whether or not the Magistrate did. It was referred to certainly during the course of proceedings - that is, an incident in which a fatal -- 2 of 5 -- 3 ORDER 1 10 20 30 40 50 60 accident or incident occurred which involved another vehicle and the applicant's vehicle. However, it does not seem to me that expressly or impliedly the Magistrate actually took that into account in the sentence. The facts appear in material which is part of the exhibits to these proceedings. That is the Transcript of Proceedings and the Magistrate's decision. Effectively, on two occasions the applicant was observed by witnesses what is called tailgating two vehicles. The length of time during which these incidents occurred and the distance over which these incidents occurred is not the subject of any direct evidence, although one witness described one of the incidents as a tailgating which occurred "over and over again". The behaviour was serious. It had the potential to distract the driver of the subject vehicle being tailgated by the applicant. It had the potential to cause serious harm, although I note that no physical harm was caused to any person. The weather conditions on the day are relevant to record. They were placed before the Magistrate. The weather was wet. Furthermore, it appeared that there was not only faulty lights on the vehicle which the applicant was driving but there were faulty brakes on the trailer part of the combined vehicle. He was, in fact, driving a semitrailer. This is relevant. Cases in the Court of Appeal, in particular one which involved -- 3 of 5 -- 4 ORDER 1 10 20 30 40 50 60 a semitrailer taking a corner too sharply and in overturning injured someone, recognise the fact that the type of vehicle which is driven is a relevant consideration in these matters. On the facts which do not appear to be in dispute it seems to me that the operation of the vehicle was clearly dangerous. There were a number of sentencing options open to the Magistrate in passing sentence in respect of dealing with an offence of dangerous operation of a vehicle. I am, however, in no doubt whatsoever that because of the circumstances of this offence, the circumstances in which the offence occurred, the fact that there were two separate occasions of dangerous operation of this type, that a custodial sentence should have been imposed. In that respect, however, I have come to the conclusion that considering the facts and circumstances of the case and appreciating the principle referred to by the respondent of House v. King nonetheless there is demonstrated an error in the Magistrate's sentence by reason of the actual level of sentence which was imposed. It seems to me beyond the appropriate boundary or limit or upper end of the range, as one may call it, for all the circumstances. This is so even taking into account the applicant's criminal and traffic history. I will allow the appeal. In the circumstances, the sentence imposed should be a sentence of six months' imprisonment. I recognise that the applicant has spent 57 days in custody. In -- 4 of 5 -- 5 ORDER 1 10 20 30 40 50 60 that regard, the sentence will be suspended after his serving 57 days in custody and suspended for a period of 12 months. The disqualification will remain. ----- -- 5 of 5 --