Fairhurst v Chee [2006] QDC 227

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[2006] QDC 227 DISTRICT COURT APPELLATE JURISDICTION JUDGE DODDS Appeal No 85 of 2006 BRIAN ROBERT FAIRHURST Appellant and SNR CONST L M AH CHEE Respondent CAIRNS ..DATE 02/06/2006 JUDGMENT -- 1 of 7 -- 02062006 D.1 T3-4/AW M/T CNS1/2006 (Dodds DCJ) 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal against sentences, in particular a sentence imposed by a Magistrate on the 21st of March 2006 in the Atherton Magistrates Court. The appellant pleaded guilty before the Magistrate to an offence of driving whilst under the influence of liquor, and driving whilst disqualified, both offences committed on the 13th of January 2006. He was stopped at 9.35 p.m. on the Kennedy Highway near Ravenshoe. His de facto partner was a passenger. His blood alcohol reading was .178 per cent. He had been disqualified from holding or obtaining a driver's licence on the 18th of August 2004. He said he was intending to travel to Maitland Station via Einasleigh where he was employed as a station hand. He had received a telephone call requiring him to return to the station to commence work. Before the Magistrate his representative said that his de facto had been driving the vehicle but when it commenced raining heavily he took over the driving because she was nervous and uncomfortable. The appellant was born on the 6th of October 1956. He was 49 years of age. He had relevant prior convictions. In November 1991 he was driving with an alcohol level greater than the prescribed concentration. The level was .080 per cent. In April 1994 he committed a similar offence. The blood alcohol level was .060 per cent. In May 1994 he committed an offence of disqualified driving, and also an offence of driving with greater than the prescribed concentration of alcohol in his blood. His reading was .123 per cent. In February 2002 he -- 2 of 7 -- 02062006 D.1 T3-4/AW M/T CNS1/2006 (Dodds DCJ) 3 JUDGMENT 1 10 20 30 40 50 60 was again driving whilst disqualified and driving under the influence of liquor. His blood alcohol level was .187 per cent. In April 2002 he was driving whilst disqualified. In July 2004 he was driving whilst disqualified and driving whilst under the influence of liquor. His blood alcohol level was .115 per cent. It is not surprising that the Magistrate was less than impressed when this man again was driving under the influence of liquor, and driving whilst disqualified. The sentences imposed by the Magistrate were imprisonment for three months for driving whilst under the influence of liquor, and imprisonment for nine months for the disqualified driving offence. The nine months' sentence was to be suspended after the appellant had served six months to remain suspended for two and a-half years. In all he was disqualified again for a period of five years. The prison sentences were to be served concurrently. On an appeal against the exercise of a sentencing discretion by a Magistrate it is not a relevant matter that I may have dealt with the matter differently than the Magistrate. Ordinarily I will not interfere with a Magistrate's sentencing discretion unless it is clear, unless it is shown the Magistrate has fallen into error, has misunderstood the law, has taken into account extraneous matters, or plainly failed to take into account relevant matters. A sentence which is -- 3 of 7 -- 02062006 D.1 T3-4/AW M/T CNS1/2006 (Dodds DCJ) 4 JUDGMENT 1 10 20 30 40 50 60 beyond a sound exercise of the sentencing discretion may reveal that some error has occurred. In his sentencing remarks the Magistrate has apparently referred to a decision in the Court of Appeal, The Queen v. Hey, ex parte Attorney-General, 2006, QCA 23, and in particular remarks made by Justice Chesterman. Hey was an Attorney-General's appeal against a sentence of six and a-half years' imprisonment with a recommendation for post-prison community based release after two and a-half years for an offence of dangerous operation of a motor vehicle causing death whilst adversely affected by alcohol. Hey's blood alcohol concentration was .189 per cent. He had five previous convictions for driving whilst under the influence of liquor, three for disqualified driving, and two for careless driving. He had committed numerous speeding offences. At the time of the offence he was disqualified from driving. The President and Keane JA considered the sentence not outside a sound exercise of the sentencing discretion. Chesterman J considered the sentence should be increased to eight years' imprisonment. In his reasons he referred to the respondent's history of driving whilst disqualified and intoxicated, including on the occasion the subject of the appeal. He observed the deceased's death was "a direct consequence of the respondent's refusal to accept that the law applied to him, and that the disqualification orders had been made to safeguard the public." He went on to express his view that the law should be "merciless when dealing with people who -- 4 of 7 -- 02062006 D.1 T3-4/AW M/T CNS1/2006 (Dodds DCJ) 5 JUDGMENT 1 10 20 30 40 50 60 behave in this way". He expressed his view that repeat offenders for driving whilst disqualified and intoxicated should be imprisoned "for a brief period to make him realise the seriousness and unacceptability of his conduct. If he did not and re-offended he should have been gaoled for a substantial period." It is plain the Magistrate has paid regard to the remarks of Justice Chesterman. However, I do not understand the Magistrate's reference to Justice Chesterman's reasons as indicating he was bound to apply them. Rather, I think he was indicating that what was said were matters worthy of consideration. It is not to the point that the other members of the Court did not find it necessary in the view they took of the primary sentence to express similar views. I agree that what Chesterman J said is plainly relevant in considering a sentence for a repeat offender. The respondent in this appeal has conceded that in all the circumstances the sentence of nine months' imprisonment for disqualified driving was excessive. Driving under the influence of liquor is a serious offence and particularly so when the blood alcohol concentration is as high as in this case. Driving whilst disqualified is also a serious offence. A disqualification ordered by a Court is a penalty in that it restricts the right to drive a motor vehicle on roads. It has, or should have, a deterrent effect on an offender and on others who may contemplate committing an -- 5 of 7 -- 02062006 D.1 T3-4/AW M/T CNS1/2006 (Dodds DCJ) 6 JUDGMENT 1 10 20 30 40 50 60 offence for which disqualification may be ordered, and it removes, or should have the effect of removing an offender from driving on public roads for the period of disqualification all of which may enhance public safety. It is an order of a Court. It is not to be thought it can be ignored and lightly penalised particularly if repeatedly committed. Offenders must be shown that the Court's order if disobeyed will bring condign punishment. It is not appropriate in this case, in my view, to visit upon the appellant a concurrent sentence of the same length as that which was imposed for the driving under the influence of liquor. An additional penalty needs to be imposed to deter him and deter others, and to bring it home to like-minded people, that driving whilst disqualified is a serious offence and will be seriously viewed by Courts. I will allow the appeal. The appeal is allowed. The sentence of nine months' imprisonment suspended after six months for the offence of disqualified driving is set aside. In lieu, I sentence the appellant to a period of five months' imprisonment for the disqualified driving offence. That will visit upon him an additional two months' imprisonment in addition to the driving under the influence sentence. ... MR MURRAY: I take it, your Honour, that the period of disqualification remains as it was from the Magistrate? -- 6 of 7 -- 02062006 D.1 T3-4/AW M/T CNS1/2006 (Dodds DCJ) 7 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: Yes. The only thing I have varied is the nine months' sentence of imprisonment, Mr Murray. MR MURRAY: Thank you, your Honour. HIS HONOUR: He can apply to have his licence back after two years if he can some how or other demonstrate to the Magistrates Court that he has cleaned up his act, to put it in crude terms. MR MURRAY: Thank you, your Honour. ----- -- 7 of 7 --