Crummer v Jenkinson [2010] QDC 310

1-1 [2010] QDC 310 DISTRICT COURT APPELLATE JURISDICTION JUDGE KOPPENOL No 165 of 2010 BRADLEY MICHAEL CRUMMER Appellant and LEE JAMES JENKINSON Respondent BRISBANE ..DATE 07/06/2010 ORDER -- 1 of 5 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal against orders made by a Magistrate on 6 January 2010. On that occasion the appellant was charged with driving without due care and attention, committing a public nuisance and failing to keep a safe distance from the front vehicle. The appellant pleaded not guilty. He was 23 years of age at the time. He conducted his own defence at a summary trial. Ultimately, the Magistrate found that the three offences were proven. The appellant had one prior criminal offence; it was for entering or being in premises with the intent to commit an indictable offence and was committed when he was 17. The appellant also had committed a number of traffic offences, including some low level speeding offences. The Magistrate found that on the day concerned the appellant's vehicle and the complainant's vehicle had stopped on a road at Cannon Hill on their way to the Exhibition. The appellant gave evidence that he was being tailgated by the complainant; the Magistrate did not accept that evidence. There was an off-duty police officer in the complainant's vehicle in addition to an eight year old child and the driver of the vehicle. The Magistrate, having heard all of the evidence, found that the appellant approached the complainant's vehicle in a -- 2 of 5 -- 1-3 ORDER 1 10 20 30 40 50 60 threatening way, yelled obscenities at the driver of that car and there was no justification for his having acted in the way that he did. The appellant was ordered to serve four months' imprisonment with parole after two months. That was for the public nuisance offence, the maximum penalty for which was six months' imprisonment. For the other two charges the appellant was convicted and not further punished. The appellant served a total of 17 days in actual custody. He was then released on bail pending this appeal. The bail pending appeal hearing occurred some 19 or 20 weeks ago. I think that the learned Magistrate regarded this incident as a road rage incident and acted correctly in that regard. I also have the distinct impression that the Magistrate sentenced the appellant on the basis that these offences were of the nature of an offence of violence. The Magistrate also noted, correctly in my view, that the appellant had shown no remorse or cooperation with the authorities. It seems that the appellant also had alcohol and anger management issues at the time he committed these offences. Whilst I regard the sentence of four months' imprisonment with parole after two months as quite high, I can perfectly -- 3 of 5 -- 1-4 ORDER 1 10 20 30 40 50 60 understand the Magistrate's concern to ensure that appropriate penalties are imposed to deter road rage incidents. I'm also of the view that a period of imprisonment could not be said to be outside the range of available sentences for this type of offending. The question now is to determine what should occur with respect to the appellant. As I said, he has already served 17 days in custody and has been on bail pending appeal for approximately five months. I think that in the end, the appropriate course to take is to allow this appeal, to revoke the sentence which was imposed by the Magistrate and to substitute a sentence of 17 days' imprisonment and I order accordingly. I also declare that the 17 days which the defendant served in custody from the 6th of January 2010 to the 22nd of January 2010 is deemed to be time served in respect of the sentence which I have just substituted. In other words, there will be no further period of actual imprisonment or no further penalty to be imposed upon or served by the defendant. I can understand the Magistrate acting in a busy Court situation in the way that he did, but I think that the sentence which was imposed was excessive in all of the circumstances. Ms Ganasan for the appellant submitted that a fine was appropriate. I think that a fine could have been -- 4 of 5 -- 1-5 ORDER 1 10 20 30 40 50 60 ordered on this occasion and that that would have been an appropriate sentence. But as I said, I am also of the view that in particular circumstances a period of imprisonment is appropriate in these type of cases. The Magistrate formed the view that imprisonment was appropriate and necessary and I am not satisfied that that was inappropriate. However, as I've said, I am of the opinion that the period of four months with parole after two months was excessive. ... HIS HONOUR: No order as to costs. ----- -- 5 of 5 --