Heydt v Commissioner of Police [2017] QDC 104 –  3 May 2017, District Court of Queensland, Lynch QC DCJ

Criminal Law — appeal and new trial — appeal against sentence — grounds for interference — sentence manifestly excessive or inadequate — where the appellant pleaded guilty to a number of offences including an offence of dangerous operation of a vehicle whilst adversely affected by an intoxicating substance — where the appellant was sentenced to a term of 12 months imprisonment cumulative upon a current sentence of 18 months imprisonment for this offence — where the parole eligibility date was fixed at 1 October 2017 — where the appellant had a relevant criminal history including traffic offences — where the appellant had not previously been convicted of a dangerous driving offence and was not serving a sentence for like offences — whether error by sentencing magistrate demonstrated — where offence resulted from appellant’s intoxicated state — whether conclusion that offence no less serious than intentional dangerous driving amounts to error — whether separate consideration as to parole eligibility amounts to error — whether the sentencing magistrate properly applied the principle of totality in imposing the parole eligibility date — whether the sentence imposed was manifestly excessive

Issues: H was charged, inter alia, with driving under the influence of liquor or a drug, disqualified driving and, most seriously, dangerous operation of a vehicle while adversely affected by an intoxicating substance (s 328A of the Criminal Code). At the time of committing the offences he was on parole in relation to earlier offending. His conduct involved erratic driving from the Logan Motorway at Gailes to the Boonah Road at Purga. It included swerving from side to side requiring other vehicles to take evasive action. H appeared to “nod off” as he drove along. He kept his right hand indicator constantly flashing. On the Cunningham Highway he took his vehicle up off ramps only to rejoin the highway via the immediately following on ramps. He almost collided head on with two motor cycles. A blood test revealed the presence of amphetamine and methylamphetamine amongst other things.

Sentence: The Magistrate sentenced H to 12 months imprisonment cumulative and fixed a parole date at 14 months from the date of sentencing. That was 20 days after his full-time release date on the earlier sentence. On appeal H was re-sentenced in the District Court to 9 months cumulative with parole eligibility at 11 months from the original sentencing.

Commentary: The errors identified by Lynch QC DCJ on appeal were that:

• It was inappropriate for the Magistrate to regard H’s conduct as any less serious than deliberate dangerous driving on the basis that to do so would effectively excuse H’s drug taking; and
• The fixing of the parole eligibility date appeared to have been determined separately from the determination of the appropriate overall sentence.

The decision of Lynch QC DCJ contains a helpful summary of comparable sentences for this type of offending.

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