Ferris v Creed [2006] QDC 156

[2006] QDC 156 DISTRICT COURT APPELLATE JURISDICTION JUDGE WHITE Appeal No 78 of 2006 T L FERRIS Respondent (Plaintiff) and JOHN NEEDHAM CREED Appellant (Defendant) CAIRNS ..DATE 22/05/2006 JUDGMENT -- 1 of 6 -- 22052006 D.1 T8/LWM M/T CNS1/2006 (White DCJ) 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: The appellant pleaded guilty in the Magistrates Court at Yarrabah on the 15th of March 2006 to the following offence, that on the 31st day of December 2005 at Yarrabah in the State of Queensland he dangerously operated a vehicle, namely a motor car, in a place, namely Sawmill Road, Yarrabah. At about 2 a.m. on Saturday, the 31st of December 2005, Yarrabah police were conducting patrols in the Yarrabah community. They observed an older model Holden station-wagon entering Yarrabah on the range road. Police recognised the appellant as the driver and single occupant of the vehicle. They followed the defendant who was driving at approximately 40 to 60 kilometres per hour and swerving over the road. Police activated their emergency lights and signalled the appellant to pull over. He did not. As a result, police drove up beside his vehicle and motioned him to pull over. He did not. He looked over at the police and accelerated away. That was, in fact, charged as an offence of obstructing police and did not constitute any of the dangerous driving. However, not long after 2 a.m. on the 31st of December the police again observed the appellant's vehicle travelling in a northerly direction on Sawmill Road. As the vehicle approached the end of the street the vehicle swerved towards approximately 30 children who were sitting on the edge of the road. It was alleged by the police that the -- 2 of 6 -- 22052006 D.1 T8/LWM M/T CNS1/2006 (White DCJ) 3 JUDGMENT 1 10 20 30 40 50 60 appellant deliberately swerved towards the children. That was disputed at the hearing. In any event, the children, according to police, were frightened and moved out of the path of the vehicle and others on the road were seen to jump out of the way to avoid being hit. Police then spoke to the occupants of a party at Sawmill Road who advised that the appellant had been at the party earlier and had consumed a large amount of alcohol. The relevance of this will appear shortly. Whilst speaking to the people, the appellant's vehicle approached the police vehicle from Stanley Street. The vehicle was driving down a slight hill with the lights off. It was dark and there was minimal lighting in the area. Police engaged the gear of the police vehicle in preparation to drive away but the appellant then stopped his vehicle in Workshop Street, at the corner of Smith Street at a roundabout, and was yelling at the police. Police were unable to ascertain what he was saying but appears that he was attempting to provoke them into chasing him. He then drove his vehicle around the roundabout three times, accelerating, revving the engine, spinning the tyres and, on several occasions, losing control. There were also children -- 3 of 6 -- 22052006 D.1 T8/LWM M/T CNS1/2006 (White DCJ) 4 JUDGMENT 1 10 20 30 40 50 60 sitting near the roundabout. The appellant then drove off quickly. The police did not engage in any pursuit. At about 2.45 a.m. the appellant was located in Edmonton where he submitted to a breath test and was taken to the Cairns police station. His blood alcohol concentration was .144. The appellant was not charged with the more serious offence of dangerously operate a motor vehicle whilst adversely affected by liquor pursuant to sub-section 328A(2) of the Criminal Code. Whether police could have charged him with the more serious offence containing the circumstance of aggravation is of no relevance. It seems from the transcript of what took place at the hearing, his Worship considered that that was a distinct possibility. In dealing with the offence, his Honour said, no doubt giving some weight to the fact, "Some 45 minutes later he was apprehended by Gordonvale police and when his alcohol level was tested it was .144. This is not averred as a circumstance of aggravation and I will not treat it as though it is a circumstance of aggravation within the meaning of 328A(2). It is, however, a relevant consideration that it is far more probable than not that he had a level of alcohol in his blood at the time which adversely affected his judgment. The particular reading is one that I will not make any determination about other than to indicate that he must -- 4 of 6 -- 22052006 D.1 T8/LWM M/T CNS1/2006 (White DCJ) 5 JUDGMENT 1 10 20 30 40 50 60 have had some alcohol in his blood at the time of driving which was above the legal limit." Whilst I would not dispute the commonsense of his Worship's approach, in my view, it was not a finding which he was entitled to make in the circumstances and not a matter to which he was entitled to give any weight in arriving at an appropriate penalty. There is no doubt that the dangerous driving by the appellant was deliberate. If any effect of alcohol on him is ignored, then it must be inevitably assumed that he either knew or should have known of the presence of significant numbers of people, including children, in the area in which he was driving dangerously. His manner of driving was not an instance of momentary inattention. Whilst it cannot be said that the dangerous operation of the vehicle extended over a lengthy period of time, it was more than momentary and it was deliberate. Under those circumstances, it was serious. The appellant had no previous convictions for any similar offences, although he did have previous convictions for some traffic offences. He had a fairly extensive criminal history for offences of violence. It was not a case in which his Worship could have given any weight to the appellant's prior good character. -- 5 of 6 -- 22052006 D.1 T8/LWM M/T CNS1/2006 (White DCJ) 6 JUDGMENT 1 10 20 30 40 50 60 In my view, there is reasonable grounds for believing that his Worship's view about the appellant's blood alcohol concentration at the time of the driving may have led him into imposing the sentence which he did. In spite of the undoubted serious of the offence, my feeling is that a sentence of 12 months imprisonment was extremely high, if not manifestly excessive. In utilising the suspicion concerning the appellant's blood alcohol concentration as he did, in my view, his Honour made an error of law and, therefore, it is necessary to approach the sentence afresh. In my view, an appropriate sentence would have been six months imprisonment. I order that the appeal be upheld. I order that the sentence of imprisonment imposed in respect of the offence of dangerous operation of a motor vehicle in the Magistrates Court at Yarrabah on 15 March 2006 be set aside. I sentence the appellant to six months imprisonment. ----- -- 6 of 6 --