Bennett & Anor v Armstrong [2004] QDC 122

DISTRICT COURT OF QUEENSLAND CITATION: Bennett & Alldrick v Armstrong [2004] QDC 122 and Davis v Armstrong PARTIES: SENIOR CONSTABLE NEIL WILLIAM BENNETT and SENIOR CONSTABLE PHILIP JOHN ALLDRICK Appellants v MATTHEW ARMSTRONG Respondent AND CONSTABLE SHANE GEOFFREY DAVIS Appellants v TROY ARMSTRONG Respondent FILE NO: 378/2003 and 370/2003 PROCEEDING: Appeal from Magistrate ORIGINATING COURT: District Court Southport DELIVERED ON: 24 May 2004 DELIVERED AT: Southport HEARING DATE: 29 March 2004 JUDGE: Newton DCJ ORDER: Appeals dismissed CATCHWORDS: APPEAL FROM MAGISTRATE – CRIMINAL LAW – APPEAL AGAINST SENTENCES – whether sentences manifestly inadequate OFFENCES OF RACING ON A HIGHWAY – S 85(1)(a) - Transport Operations (Road Use Management Act) 1995 – whether open to Magistrate to assess penalty by reference to penalty provided for speeding under s 20 Transport Operations (Road Use Management (Road Rules) -- 1 of 7 -- - 2 - Regulation) 1999 – whether Magistrate erred in not imposing minimum sentence of not less than that which could have been imposed for speeding – whether Magistrate erred in failing to give weight to comparable sentence – whether lenient sentences should be overturned where manifest inadequacy not demonstrated COUNSEL: Mr M T Whitbread – appellants Mr B Reilly - respondents SOLICITORS: Director of Public Prosecutions – appellants Hoolihans Lawyers – respondents [1] These appeals against sentence are brought in respect of two respondents and, by agreement, were heard together. [2] The facts may be briefly summarised. On the evening of 9 March 2003, police were patrolling the Pacific Motorway. Shortly after midnight, they observed two vehicles in adjacent lanes at Yatala travelling south. The vehicles were next to each other and slowed to a speed of about 90kph before accelerating simultaneously. The vehicles were being driven by the respondents. Mathew Armstrong’s vehicle reached a speed of 180kph before slowing. Troy Armstrong’s vehicle reached a speed of 200kph. The designated speed limit on that part of the motorway was 110kph. The vehicles were intercepted at Coomera and Mathew Armstrong admitted to taking part in a race with his brother and to reaching a speed of 180kph. [3] Approximately one month later, on 4 April 2003, an off duty police officer was walking with his family at about 6.15pm in a suburban area at Palm Beach. He -- 2 of 7 -- - 3 - observed two vehicles stationary side by side, and heard the engines of both rev loudly. He then saw the vehicles accelerate quickly over a distance of some 400 metres and reach speeds estimated at between 90 and 100kph in a 60kph zone. The vehicles travelled near the Elanora High School during this race. The police officer saw that one of the drivers was Mathew Armstrong and recorded the registration number of his vehicle. [4] The respondent Mathew Armstrong voluntarily attended at a police station on 9 April 2003 and admitted to the offence of street racing. He stated that he did not know the identity of the other driver, but admitted that he knew the speed limit was 60kph. He did not know what speed he reached. [5] The respondents were each charged with racing on a highway in respect of the incident of 9 March 2003 and Mathew Armstrong was further charged with racing on a highway in respect of the incident of 4 April 2003. The charges were laid under the provisions of Section 85(1)(a) of the Transport Operations (Road Use Management) Act 1995. The respondents were liable upon conviction for each offence of street racing to a fine of 40 penalty units ($3,000) or six months imprisonment. The respondents pleaded guilty to the charges. [6] The Magistrate ordered that Troy Armstrong be convicted and fined $300. He was disqualified from holding or obtaining a driver’s licence for a period of one month. Three months were allowed for the fine to be paid, in default six days’ imprisonment was ordered. The same orders were made in respect of Mathew Armstrong in relation to the offence of 9 March 2003. In respect of the -- 3 of 7 -- - 4 - subsequent offence on 4 April 2003, the Magistrate ordered that Mathew Armstrong be convicted and fined $400 and disqualified from holding or obtaining a driver’s licence for a period of three months. The default period in respect of payment of fine was eight days’ imprisonment and three months was again allowed for payment. [7] In the Magistrate’s reasons for her decision, the following matters were specifically taken into account: ƒ the respondents’ early pleas of guilty; ƒ the fact that in the case of Troy Armstrong, the offence was an isolated incident on his part; ƒ whereas, in the case of Mathew Armstrong, the second offence demonstrated repeated behaviour on his behalf; ƒ the co-operation with the authorities by the respondents including their admissions that they had been racing; ƒ the fact that both respondents had been disciplined by their parents in relation to these offences and the motor vehicles had been sold and each respondent had undertaken a course of driver training. ƒ The fact that the offences occurred on public roadways and involved deliberate conduct amounting to a disregard for responsible driving in the community; ƒ the prevalence of such offences in the community; ƒ the need for both specific and general deterrence in sentencing; ƒ the Magistrate’s awareness of the prescribed penalties for the offence of street racing; -- 4 of 7 -- - 5 - ƒ the respective traffic histories of both respondents which showed that Troy Armstrong had only one prior entry but that, in the case of Armstrong, the offending was repeated; ƒ that in the case of Mathew Armstrong separate penalties should be ordered in respect of each offence. [8] The appellants seek in this court to contrast the penalties imposed by the Magistrate in these cases with the penalty for speeding under Section 20 of the Transport Operations (Road Use Management - Road Rules) Regulation 1999 which provides for a penalty of up to 40 penalty units ($3,000). The appellant contends that the inclusion of a possible custodial penalty for the offence of street racing demonstrates the legislature’s intention to characterise street racing as a more serious offence than speeding. I note that no mandatory period of disqualification attaches to a conviction for either street racing or speeding, although there is a discretionary power pursuant to Section 187 of the Penalties and Sentences Act 1992 to order a period of disqualification in respect of both offences. I further note that Section 90 of the Transport Operations (Road Use Management) Act 1995 permits the making of an order for the disqualification of the licence of an alleged offender notwithstanding his acquittal on a charge of street racing. This power does not exist in respect of a complaint of speeding. [9] The legislature has quite clearly distinguished between the approach in sentencing for speeding offences and that in respect of offences of road racing. In respect of the latter, the legislature has entrusted the assessment of appropriate penalties to the courts following consideration of all relevant factors relating to both the -- 5 of 7 -- - 6 - offence and the offender together with the relevant provisions contained within the Penalties and Sentences Act. Minimum penalties have not been included in the legislation governing sentencing for street racing, and no error by the Magistrate has been demonstrated in not imposing a minimum sentence of not less than that which could have been imposed for speeding. [10] The appellants contend that the sentencing Magistrate should have accorded some weight to a so-called comparable sentence to which reference was made during submissions by the prosecution in relation to an appropriate period of disqualification. However, the transcript of proceedings in the court below reveals that the facts in that case bear little resemblance to those of the matters now the subject of these appeals, and that, perhaps more importantly, no details of that offender’s traffic history were able to be provided to the Magistrate. In these circumstances, in my opinion, very little assistance could have been derived from a consideration of this matter, and no error is discernible on the part of the Magistrate in failing to refer to it in her decision. [11] There can be little doubt that very lenient sentences were imposed in respect of the matters now under consideration. It would have been open to the Magistrate to have imposed heavier fines and ordered longer periods of disqualification to reflect the undoubted seriousness of the offences. However, I am unable to conclude that the sentencing function has miscarried either because of error in reasoning or because of manifest inadequacy of the penalties imposed. I am not prepared to accept the invitation of Counsel for the appellants to interfere with the sentences on the ground of mere inadequacy rather than manifest inadequacy. To -- 6 of 7 -- - 7 - do so would, in my view, run counter to the long established recognition that appellate courts should not interfere with the discretion of a court of first instance in the sentencing process unless it can be shown that the sentence imposed was manifestly inadequate. [12] The appeals are, for these reasons, dismissed. - - - - - -- 7 of 7 --