Brooymans v Director of Public Prosecutions [2008] QDC 207

1 [2008] QDC 207 DISTRICT COURT APPELLATE JURISDICTION JUDGE EVERSON BETINA LEE BROOYMANS Appellate and DIRECTOR OF PUBLIC PROSECUTIONS Respondent CAIRNS ..DATE 25/08/2008 JUDGMENT -- 1 of 4 -- 25082008 D.1 T(3)4-(3)6/KSJ(CNS) M/T CAIR02 (Everson DCJ) 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal by Betina Lee Brooymans, arising out of her conviction and sentence in the Atherton Magistrates Court on 1 April 2008 for 3 counts of disqualified driving. She received a sentence of 2 months' imprisonment with 2 years' probation in respect of each charge. She was also disqualified from holding or obtaining a driver's licence for a period of 2 years. Before me it is submitted by her barrister, Mr Murray, that the sentence is manifestly excessive. Mr English, who appears on behalf of the respondent, supports this submission. Relevant considerations appear in the decision of his Honour Judge Brabazon QC in Santillan v Queensland Police Force [2008] QDC 33. He notes, at paragraph 3, that punishments such as imprisonment and licence disqualification are separate punishments and can amount to a double punishment for the same offence. In that case he also sentenced someone for three counts of disqualified driving, but also one count of obtaining a false driver's licence, in the context of someone described at paragraph 5 as a 22 year old with "a very bad traffic history", extending to 5 and a-half pages. Whilst his Honour Judge Brabazon noted the appellant didn't drink, he summarised his behaviour in the following terms, "He speeds, he drives without his licence and he does things, such as, making a noise and creating smoke with his rear tyres". Significantly it is also observed at the same paragraph that the appellant used his car to earn his living as a painter. That can also be said of the appellant before me. Part of the -- 2 of 4 -- 25082008 D.1 T(3)4-(3)6/KSJ(CNS) M/T CAIR02 (Everson DCJ) 3 JUDGMENT 1 10 20 30 40 50 60 reason for driving was to maintain her employment in a supermarket some distance from where she lived. The circumstances before his Honour Judge Brabazon were summarised by him at paragraph 8 as including "calculated offences of driving whilst disqualified and...deception". The circumstances before me reveal a more spontaneous approach by the appellant who drove in circumstances where she needed to get to work, or the designated driver at a party had consumed too much alcohol. The disqualification arose when the appellant was convicted of drink driving, but to a very limited extent. The amount of the blood alcohol level was .034 per cent, this was sufficient to qualify for drink driving because she was on a provisional licence. The penalty she received in this regard on the 12th of February 2008, again, in the Atherton Magistrates Court, was a fine of $200 and a disqualification for 3 months. In Santillan, as I have indicated, an appeal involving circumstances of much more serious offending, his Honour Judge Brabazon held an appropriate penalty was imprisonment for eight months with an immediate parole release date and a disqualification period of two years. The facts before me make it clear that the penalty imposed upon the appellant was manifestly excessive. This is particularly so when there was no element of drink driving or culpable driving present in the offending of the appellant. -- 3 of 4 -- 25082008 D.1 T(3)4-(3)6/KSJ(CNS) M/T CAIR02 (Everson DCJ) 4 JUDGMENT 1 10 20 30 40 50 60 It is true that driving whilst disqualified is a serious matter and the appellant was caught on three occasions within one month. This would indicate a somewhat callous disregard for the penalty imposed upon her, however the fact remains that she was only 20 years of age at the relevant time and the provisions of section 9 of the Penalties and Sentences Act are particularly relevant to such a young offender. Section 9(2)(a) states that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable. That is the overriding consideration that should have operated on the mind of the learned sentencing Magistrate. Regrettably it does not appear to have done so. Sadly, the appellant has already spent 6 weeks in prison. I consider this, coupled with the two year period of disqualification, to be more than sufficient punishment in the circumstances. I therefore allow the appeal and set aside the order of the learned sentencing Magistrate. Because the period of imprisonment has already been served, I will substitute a six week period of imprisonment to reflect this. As I have indicated, the two year disqualification will stand, however had I been sentencing afresh in circumstances where imprisonment had not already been served by the appellant, I would have been minded to make a community based order. ----- -- 4 of 4 --