Collier v Commissioner of Police [2012] QDC 87

1-1 [2012] QDC 87 DISTRICT COURT APPELLATE JURISDICTION JUDGE R JONES No 1282 of 2012 BEN EDWARD COLLIER Appellant and COMMISSIONER OF POLICE Respondent BRISBANE ..DATE 27/04/2012 ORDER -- 1 of 7 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: In this proceeding, the applicant seeks bail pending an appeal against the sentence imposed in the Caboolture Magistrates Court on 27 February 2012. On that date, the applicant pleaded guilty to two charges of dangerous operation of a motor vehicle. Upon his plea of guilty, he was sentenced to nine months' imprisonment in respect of each of the two offences, a fixed parole release date of 27 May 2012 was imposed and he was disqualified from holding or obtaining a driver's licence for a period of 18 months. The sentence required the applicant to serve three months' imprisonment. He has already served two months of that sentence. It's accepted by both the applicant and the respondent that an order granting bail pending an appeal will only be made in exceptional circumstances and of particular relevance here that there be sound grounds for concluding that the appeal will be successful and that the applicant may be required to serve an unacceptable portion of his sentence before the appeal can be heard. It is noted that the applicant intends to appeal on the grounds that the sentence was manifestly excessive. It would also appear that the applicant intends to argue that the Magistrate, in imposing the sentence that he did, took into account a fatal collision involving the applicant that occurred some time after the two acts of dangerous operation of a motor vehicle. No charges were laid in respect of that -- 2 of 7 -- 1-3 ORDER 1 10 20 30 40 50 60 fatal accident. Unfortunately, in this appeal the sentencing remarks were not available and there is no affidavit material which would indicate that the Magistrate did, in fact, take the subsequent fatal accident into account. It is submitted, on behalf to he applicant, that whilst there is no direct evidence of that, it might reasonably be inferred by the sentence imposed that the Magistrate did take that matter into account or, alternatively, took into account some irrelevant material or failed to take into account some material consideration. I refer here to a statement made in the case of House -v- The King (1936) 55 CLR 499 at 504. It is also accepted that this Court should not impose or simply grant the relief sought on the basis that it might have imposed a different sentence. The factual background to the offences were that on two separate occasions the applicant tailgated a vehicle before aggressively overtaking. The applicant had a criminal history that is really of no relevance. At face value it appears to be a significant one involving stealing as a servant but by reference to the penalty imposed being a $400 fine and no conviction recorded it would appear to be that it was a very minor example of that offence. The appellant does, however, have, what could only be described, a very ordinary, if not, dreadful traffic history and in this case I note that after committing the offences, the subject of this application, the applicant continued to -- 3 of 7 -- 1-4 ORDER 1 10 20 30 40 50 60 commit traffic offences. I've been referred to a number of cases. In the Queen -v- Smith [2004] QCA 126 the appellant was successful in having the sentence imposed reduced to 15 months' imprisonment wholly suspended with an operational period of three years. In that case, Smith was charged with one count of dangerous operation of a motor vehicle while adversely affected by alcohol. He had a previous drink driving conviction. Some 20 minutes of erratic driving were involved including wandering across lanes and causing other drivers to take evasive action. Smith was of demonstrably good character. Here, as I said, the applicant has an irrelevant criminal history but a relevant traffic history. The level of dangerousness between the subject application and Smith are similar but not identical. Of significance in Smith is that alcohol was involved and in this application, as I understand it, there's no suggestion that the applicant had wandered across lanes requiring oncoming traffic to take evasive action. In The Queen -v- Forsythe [2011] QCA 71 the Court of Appeal refused an application to file an appeal out of time. In that case, Forsythe had been sentenced for two years' imprisonment with an immediate parole release date. Of significance there is that Forsythe had deliberately driven his vehicle at another person causing minor physical injury. Reference was made to the fact that this was a bad example of this offence. -- 4 of 7 -- 1-5 ORDER 1 10 20 30 40 50 60 It is, of course, not suggested here that the applicant deliberately drove his vehicle intending to strike any particular person. In my view, Forsythe is a more serious example of this offence. In The Queen -v- Carney [2009] QCA 113, the applicant was refused leave to appeal a sentence of 12 months' imprisonment suspended after two months with an operational period of 12 months. That case was involved the deliberate driving of a vehicle at a police officer. Carney also had an extensive criminal history and a traffic history with four prior speeding offences. The last case which I intend to deal with is The Queen -v- Harris where the applicant's sentence was overturned and resentenced by the Court of Appeal to 12 months' imprisonment with an immediate parole release date. That case involved the appellant driving aggressively and eventually losing control of his vehicle mounting a footpath and driving into a house causing extensive damage. He thereafter fled the scene. He had a criminal history of significance. He had previously been sentenced to a period of imprisonment and had, what was described as, an appalling traffic history. He had relevantly spent four months in custody prior to the sentence imposed by the Court of Appeal. The respondent here, whilst conceding that the sentence was at the high end of the range, does not concede that the sentence -- 5 of 7 -- 1-6 ORDER 1 10 20 30 40 50 60 was manifestly excessive. It is my view having regard to the cases to which I've referred and I should also mention that during submissions I was also referred to a decision of this Court in the case of Miller -v- Dunning [2006] QDC 420. By reference to the cases to which I've been referred, it does appear to me that the sentence imposed is beyond the upper limit of the range for this type of offence having regard to the facts and circumstances involved and, accordingly, I consider that the appellant has good prospects of succeeding in his appeal. It is also relevant that he has already served two months of a three month sentence and it seems uncontroversial that a not insignificant part of the remaining one month imprisonment the applicant is serving will be taken up in having all the material necessary for the hearing of the appeal including the transcript of the sentencing remarks available for the appeal. It is also not in contest that the applicant is not likely to fail to appear; his accommodation, family commitments, would suggest that. During the course of submissions I was handed a draft order by Ms McMahon who appears on behalf of the applicant. The respondent's position is that in the event that I were to grant bail the terms of those orders were not disputed or opposed. -- 6 of 7 -- 1-7 ORDER 1 10 20 30 40 50 60 For the reasons given, I intend to grant the relief sought in the orders handed up to me which I'll initial and place on the file. ----- -- 7 of 7 --