Dixon v Queensland Police Service [2011] QDC 353

1-1 [2011] QDC 353 DISTRICT COURT APPELLATE JURISDICTION JUDGE C F WALL QC No D506 of 2010 BLAKE TREFF DIXON Appellant and QUEENSLAND POLICE SERVICE Respondent SOUTHPORT ..DATE 16/11/2011 JUDGMENT -- 1 of 10 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal against sentences imposed in the Magistrates Court at Southport on the 26th of October 2010, following pleas of guilty by the appellant to two traffic offences. The first offence was that on the 2nd of April 2010 at Surfers Paradise he dangerously operated a vehicle on the Gold Coast Highway and at the time of committing the offence he was adversely affected by an intoxicating substance, namely, alcohol. His blood alcohol concentration was .189 per cent. The second offence was that at the same time and place he drove a motor vehicle on Remembrance Drive, Surfers Paradise, not being at that time the holder of a driver licence, and at the time he was disqualified by Court order from holding or obtaining a driver licence. For the first offence he was sentenced to imprisonment for 10 months, with a parole release date fixed of the 26th of February 2011. For the disqualified driving offence he was sentenced to a concurrent term of six months' imprisonment. He would have been eligible to be released on that sentence also on the 26th of February 2011. As best I can see, for each offence he was disqualified from holding or obtaining a driver licence for four years. -- 2 of 10 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 He had a traffic history in New South Wales and the following prior offences were taken into account by the Magistrate: 3rd of December 2006, Penrith Local Court, driving while under the influence of alcohol or other drugs. His solicitor told the Magistrate that that offence involved drugs, not alcohol. For that offence he was fined $500 and disqualified from holding or obtaining a driver licence for nine months, commencing on the 21st of January 2007. On the 2nd of April 2007 in the Kempsey Local Court at Coffs Harbour he was convicted of two offences of driving while disqualified from holding a licence. For the first he was sentenced to imprisonment for six months, suspended, and he was disqualified from holding or obtaining a driver licence for two years, commencing on the 21st of October 2007. For the second offence of driving whilst disqualified he was sentenced to imprisonment for two years, suspended, and disqualified from holding or obtaining a driver licence for two years, commencing on the 20th of October 2009. He thus had about one year of that disqualification to serve at the time he was dealt with for the subject two offences. The Magistrate initially referred to the prior conviction of the 3rd of December 2006 as one for driving under the influence of alcohol. Mr McMillan, the appellant's solicitor, -- 3 of 10 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 interrupted the Magistrate and indicated to his Honour that the present was the first traffic offence involving alcohol; the New South Wales one was for drugs, which he had earlier mentioned to the Magistrate. The Magistrate said that drugs or alcohol are irrelevant for the purposes of this exercise, and noted that from the traffic history the charge was driving under the influence of alcohol or other drugs. In the end he saw little distinction in the point as to whether it was drugs or alcohol because of the generic nature of the offence. The Magistrate took into account the following matters: (1) That the present offence of disqualified driving was the third time he had pleaded guilty to such an offence. He recognised that it was only the second occasion that he had been convicted of such an offence. (2) The pleas of guilty, which his Honour found were relatively early pleas. (3) The appellant's cooperation with the police. (4) The absence of any police chase of a formal nature, at least that the appellant was aware of. (5) The relatively short period of dangerous driving, a little over a kilometre, but on the other hand there were two occasions when the appellant distinctly put -- 4 of 10 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 people at risk, and he was travelling in excess of 120 kilometres per hour in a 60 kilometre per hour zone. The appellant's solicitor, Mr McMillan, in his outline of argument summarised the facts as follows: (a) At about 3.15 a.m. on the 2nd of April 2010 police were performing mobile patrols in a marked police vehicle in the Surfers Paradise area. (b) Police observed the vehicle driven by the appellant at the intersection of Fern Street and the Gold Coast Highway. The vehicle was observed to proceed through a red light and turn right onto the Gold Coast Highway. (c) Police observed vehicles in both the north and southbound lanes having to take evasive action to avoid a collision. (d) Police activated the lights and siren on the police vehicle and followed the appellant's vehicle from a distance of between 100 and 200 metres. On Remembrance Drive the appellant's vehicle reached a speed of 120 kilometres an hour in a 60 kilometre an hour speed zone. -- 5 of 10 -- 1-6 JUDGMENT 1 10 20 30 40 50 60 (e) Police observed the appellant's vehicle continue at speed along Remembrance Drive. (f) The appellant's vehicle was seen to change lanes in front of another vehicle and turn left into Paradise Island Road, narrowly avoiding a collision with the vehicle that he overtook; (g) The appellant's vehicle came to a stop and he was arrested. He was unsteady on his feet and his speech was slurred. He was found to have a blood alcohol reading of .189 per cent; and (h) Police checks revealed that the appellant's provisional driver licence was disqualified from the 20th of October 2009 to the 20th of October 2011. That seems to be the disqualification imposed for the second disqualified driving offence in the Kempsey Local Court. (6) The previous offence of driving while under the influence of alcohol or drugs, and the two offences of disqualified driving. (7) That the appellant was enrolled in a TAFE course which was to commence the following year. (8) That a third disqualified driving offence put the -- 6 of 10 -- 1-7 JUDGMENT 1 10 20 30 40 50 60 appellant in range of a term of imprisonment, with time to be served. (9) That imprisonment is an option of last resort. (10) That the appellant was aware that if he committed further offences whilst disqualified he risked imprisonment. (11) That the only effective penalty that could be imposed was one of imprisonment. Mr McNab, who appeared for the appellant, referred to the comment made by the Magistrate that for a third driving whilst disqualified offence the appellant would be "liable to a term of imprisonment". I don't understand the Magistrate to have been saying that that was the only penalty which could be imposed. I read "liable" in the context in which it was used as meaning "open". Mr McNab conceded that prison with time to be served was open for this type of offending. He submitted, though, that an immediate parole release order should have been made. He also submitted that the Magistrate did not have proper regard to some of the matters in section 9 of the Penalties and Sentences Act, namely that an offender should be punished to an extent that is just in all the circumstances and which takes into account his character and age and other mitigating features. Section 78(2) of the Transport Operations (Road Use -- 7 of 10 -- 1-8 JUDGMENT 1 10 20 30 40 50 60 Management) Act 1995 was referred to the Magistrate, and in my view he appears to have relevantly taken into account matters referred to there. Section 78(2) provides as follows: "If a person commits an offence against subsection (1)" - which is driving without a licence - "when the person is a disqualified driver, or is a repeat unlicensed driver for the offence, the Court, in deciding what penalty to impose on the person, must consider— (a) all the circumstances of the case, including circumstances of aggravation or mitigation; and (b) the public interest; and (c) the person’s criminal history and traffic history; and (d) any information before it relating to the person’s medical history, or the person’s mental or physical capacity, that the Court considers relevant; and (e) whether the offence was committed in association with the commission or attempted commission of another offence and, if so, the nature of the other offence; and (f) any other matters that the Court considers relevant." Mr McNab also submitted that the Magistrate was impermissibly -- 8 of 10 -- 1-9 JUDGMENT 1 10 20 30 40 50 60 influenced by his initial recitation of the appellant's prior conviction as one of a conviction for driving under the influence of alcohol, whereas in fact it was for driving under the influence of drugs. In my view there is, with respect, no substance in that submission, for the reasons I have indicated. Mr McNab also submitted that a disqualification period of four years was manifestly excessive and a more appropriate period would have been three years. The effective disqualification period imposed was one of three years, because one year of the four years would be served concurrently with the disqualification period imposed in the Kempsey Local Court commencing on the 20th of October 2009. The maximum penalty available to the Magistrate for the offence of dangerous operation whilst adversely affected by alcohol was 400 penalty units, or three years' imprisonment, and a maximum licence disqualification of five years. The maximum penalty available for the offence of driving whilst disqualified was 60 penalty units, or 18 months' imprisonment and a licence disqualification of up to five years. I am not satisfied that the Magistrate erred in the approach he took. I am not satisfied that any error sufficient to warrant appellate intervention has been shown. In my view also the sentence, in a House versus the King sense, could not be said to be manifestly excessive for either offence or in respect of the licence disqualification, period of four years. -- 9 of 10 -- 1-10 JUDGMENT 1 10 20 30 40 50 60 For these reasons the appeal will be dismissed. The appellant was released on bail pending the disposition of this appeal. He served four days of the sentence imposed on him before being released on bail. It is necessary that I fix a new parole release date, and taking into account the four days already served, I fix 12th of March 2012 as the appellant's parole release date. The orders I make are these: (1) The appeal is dismissed. (2) The parole release date fixed by the Magistrate is varied and a parole release date of the 12th of March 2012 is fixed. I order that a warrant issue for the arrest of the appellant on the charges of which he was convicted in the Magistrates Court at Southport on the 26th of October 2010. Any application for costs? MR MITCHELL: No, your Honour. HIS HONOUR: I make no order for costs. ----- -- 10 of 10 --