Ernst v Spiller [2012] QDC 269

1 [2012] QDC 269 DISTRICT COURT APPELLATE JURISDICTION JUDGE REID No 1531 of 2012 DARRYN MALCOLM ERNST Appellant and CHAD EDWARD SPILLER Respondent BRISBANE ..DATE 24/08/2012 JUDGMENT -- 1 of 5 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: I have before me an appeal from a sentence imposed by the Magistrates Court on the 27th of March 2012. On that date the appellant was convicted on his own plea of one count of possession of dangerous drugs under the provisions of the Drugs Misuse Act, of an offence of driving under the influence of liquor and of driving without a licence pursuant to the Transport Operations (Road Use Management) Act, and of driving an unregistered vehicle and an uninsured vehicle pursuant to the provisions of the Transport Operations (Road Use Management-Vehicle Registration) Regulation. At the time the appellant was subject to a six months suspended sentence which had been imposed by the Brisbane Magistrates Court on the 6th of February 2012 in respect of an offence of serious assault of a police officer. The learned Magistrate imposed a sentence whereby he activated the whole of the six month suspended sentence and ordered in respect of the charges to which the appellant had pleaded that he serve a period of 12 months' imprisonment, all those offences to be served concurrently but cumulatively on the activated six month suspended sentence. The effect of that was a head sentence of 18 months. The learned Magistrate set a parole eligibility date of the 26th of August 2012, in two days time. I was advised by the appellant that he understands a home assessment has been done and his parole has been approved. -- 2 of 5 -- 3 JUDGMENT 1 10 20 30 40 50 60 It is clear from the appellant's submissions that he has significant issues associated with brain damage, associated with a frontal lobe injury related to a motor vehicle accident and perhaps issues associated also with drug use and other psychiatric or psychological issues. In any case the Magistrate was particularly influenced by the traffic and criminal history of the appellant. Perusal of the criminal history, which extends to some seven pages, shows periods of significant imprisonment for drug use, in particular for possession and use of methylamphetamines in March 1995 for which he was sentenced to two and a-half years' imprisonment and on the 11th of April 2003 for which he was sentenced to two years' imprisonment. In addition to what I calculated to be nine separate offences of possession of dangerous drugs there are also offences of breaking and entering, weapons offences, breach of probations and assaults. The traffic history extends to some eight pages and shows regular offences of disqualified driving and other traffic offences. There was from 2008, it seems, a period of relative calm in the appellant's life. There were no criminal matters between the 7th of March 2008 and the suspended sentence imposed in respect of the serious assault on police on the 6th of February 2012. -- 3 of 5 -- 4 JUDGMENT 1 10 20 30 40 50 60 In respect of his traffic history there were no matters between the 7th of April 2008 and a blood alcohol concentration charge in February 2010. Thereafter, however, there were a significant number of problems including disqualified driving, with a consequent imprisonment term imposed on the 6th of September 2011 and disqualified driving for which he was dealt with on the 1st of March 2012 being the subject offence. In all it appears to me that the activation of the whole of the suspended sentence was justified. The onus, of course, is on the appellant to show that the imposition of such a sentence was unjust. It seems to me, having regard to his overall criminal and traffic history, that the Magistrate was entitled to come to the conclusion that he did, namely, that the sentence of six months' imprisonment should be served. In respect of the subject offences the imposition of a sentence of 12 months' imprisonment, resulting in an overall head sentence of 18 months, with a parole eligibility date after five months, was within range having regard to the very significant criminal and traffic history including periods of imprisonment to which I have referred. It is unfortunate that the appellant's capacity to temper his behaviour is no doubt adversely affected by the significant frontal lobe damage injury or other head injury from which he has suffered. -- 4 of 5 -- 5 JUDGMENT 1 10 20 30 40 50 60 Nevertheless, giving due deference and regard to the decision at first instance of the Magistrate, it seems to me that the decision he arrived at was reasonable and appropriate. In the circumstances I do not think that the appeal can succeed. I do note, however, that he is due to be released in the next couple of days and urge, upon his release, that he get what treatment he can with the support of his family who he says have offered him accommodation on his release to ensure that in the future his capacity to withstand the demands of life and the lack of impulse control associated with frontal lobe damage does not again result in him being brought back before a Court. In the circumstances the appeal is dismissed. ----- -- 5 of 5 --