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  • {solid} Appeal Determined (QCA)

R v Muirhead; R v Muirhead; ex parte Attorney-General (Qld)

 

[2019] QCA 244

SUPREME COURT OF QUEENSLAND

CITATION:

R v Muirhead; R v Muirhead; Ex parte Attorney-General (Qld) [2019] QCA 244

PARTIES:

In CA No 39 of 2019:

R

v

MUIRHEAD, Andrew David

(applicant)

In CA No 41 of 2019:

R

v

MUIRHEAD, Andrew David

(respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(appellant)

FILE NO/S:

CA No 39 of 2019

CA No 41 of 2019

DC No 265 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 4 February 2019 (Jones DCJ)

DELIVERED ON:

12 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11 October 2019

JUDGES:

Fraser and McMurdo JJA and Buss AJA

ORDERS:

  1. Sentence application refused.
  2. Sentence appeal by the Attorney-General dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY – GENERAL OR OTHER CROWN LAW OFFICER – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant/respondent pleaded guilty to dangerous operation of a vehicle causing death – where applicant/respondent sentenced to imprisonment for three years six months – where applicant/respondent contends sentencing judge erred in finding offending conduct did not involve momentary inattention – whether sentence manifestly excessive – whether sentence manifestly inadequate

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited

Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, cited

R v Allen [2012] QCA 259, cited

R v Boubaris [2014] QCA 199, cited

R v Browning [2018] QCA 337, cited

R v Burnett-Greenland (2017) 81 MVR 16; [2017] QCA 159, cited

R v Flew [2008] QCA 290, cited

R v Gruenert; Ex parte Attorney-General (Qld) [2005] QCA 154, cited

R v Hart [2008] QCA 199, cited

R v Henderson; Ex parte Attorney-General (Qld) [2013] QCA 63, cited

R v Huxtable [2014] QCA 249, cited

R v Lightbody (2019) 88 MVR 95; [2019] QCA 61, cited

R v MacDonald (2014) 244 A Crim R 148; [2014] QCA 9, cited

R v Maher [2012] QCA 7, cited

R v Osborne [2014] QCA 291, cited

R v Palmer; Ex parte Attorney-General (Qld) [2019] QCA 133, cited

R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited

R v Schoner (2015) 255 A Crim R 470; [2015] QCA 190, cited

Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, cited

COUNSEL:

A J Edwards for the applicant/respondent

M R Byrne QC for the respondent/appellant

SOLICITORS:

Wallace O'Hagan Lawyers for the applicant/respondent

Director of Public Prosecutions (Queensland) for the respondent/appellant

  1. [1]
    FRASER JA:  I agree with the reasons for judgment of Buss AJA and the orders proposed by his Honour.
  2. [2]
    McMURDO JA:  I agree with Buss AJA.
  3. [3]
    BUSS AJA:  Andrew David Muirhead (the applicant) was charged on indictment with one count which alleged that on 27 July 2017, at Coolum Beach, the applicant dangerously operated a motor vehicle on School Road, and caused the death of Sharon Lee Cuthbert (the victim), contrary to s 328A(4)(a) of the Criminal Code (Qld) (the Code).
  4. [4]
    The applicant was convicted, on his plea of guilty in the District Court before RS Jones DCJ, of the charged offence.
  5. [5]
    On 4 February 2019, his Honour sentenced the applicant to three years six months’ imprisonment with parole eligibility after 12 months.  The applicant was disqualified from holding or obtaining a driver’s licence for five years.
  6. [6]
    The applicant has applied for leave to appeal against the sentence of imprisonment (but not the disqualification order).  The Attorney-General has appealed against the sentence of imprisonment (but not the disqualification order).
  7. [7]
    I would refuse to grant the applicant leave to appeal and I would dismiss the Attorney-General’s appeal.  My reasons are as follows.

The offence created by s 328A(4)(a) of the Code

  1. [8]
    Section 328A(4)(a) of the Code provides, relevantly, that a person who “operates, or in any way interferes with the operation of, a vehicle dangerously” in any place and causes the death of another person commits a crime and is liable on conviction on indictment to imprisonment for 10 years.
  2. [9]
    Section 328A(6) provides, relevantly, that in s 328A:

operates, or in any way interferes with the operation of, a vehicle dangerously means operate, or in any way interfere with the operation of, a vehicle at a speed or in a way that is dangerous to the public, having regard to all the circumstances, including –

  1. (a)
    the nature, condition and use of the place; and
  2. (b)
    the nature and condition of the vehicle; and
  3. (c)
    the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place; and
  4. (d)
    the concentration of alcohol in the operator’s blood or breath; and
  5. (e)
    the presence of any other substance in the operator’s body.”
  1. [10]
    Section 328A(4)(a), as currently enacted, came into operation on 20 March 2007.

The facts and circumstances of the offending

  1. [11]
    On 27 July 2017, at about 4.55 pm, the victim parked her car outside her house on School Road.  The car was parked legally on the left shoulder of the southbound lane, behind her husband’s utility.  The outer edge of the victim’s car was about 20 cm  30 cm inside the fog line marked on the road.  The applicant was driving an Isuzu truck which was towing an item of wood-chipping equipment.  The applicant was approaching the victim’s parked car from behind.  His vehicle was of a size and type that required a special licence to drive it.
  2. [12]
    Before the applicant’s vehicle reached the victim’s parked car, the applicant had driven around a slight left-hand bend.  At that stage there was at least 105 m of straight road, and an unobstructed line of sight, to the place where the victim’s car was parked.  If the applicant had been travelling at the speed limit, it would have taken him about 7.6 seconds to travel the distance.  There was no suggestion that the applicant had been speeding.
  3. [13]
    When the applicant’s vehicle reached the victim’s parked car, the victim had alighted from her car and was standing near the driver’s door of her car.  The driver’s door was shut.  The front left side mirror of the applicant’s vehicle struck the rear right tail light section of the victim’s car.  The applicant’s vehicle continued forward and other parts of his vehicle (the left rear tailgate hinge, the front left side indicator and the rubber moulding/support arm) struck the right side of the victim’s car.  The front left side of the applicant’s vehicle (not the side mirror) then struck the victim.  The applicant did not brake, swerve or take any other action to avoid the collision.
  4. [14]
    The applicant stopped his vehicle on the side of the road about 40 m after the point of the collision.  He then ran to the victim, who was lying on the road.  The applicant showed clear signs of distress that he had struck and killed the victim.
  5. [15]
    The applicant was breathalysed upon the police arriving at the scene.  His blood alcohol reading was 0.037 per cent.  A sample of the applicant’s saliva revealed the presence of methylamphetamine.  However, no testing was undertaken to determine the concentration of that drug.
  6. [16]
    At the time of the collision, the road was in good condition and the weather was fine.

The applicant’s personal circumstances, prior criminal record and prior traffic history

  1. [17]
    The applicant was aged 39 at the time of the offending.  He was aged 40 when sentenced.
  2. [18]
    When the offending occurred the applicant was feeling very depressed as a result of his separation from his partner of eight years.  They had one child who was aged five when the applicant was sentenced.  After the offending, the applicant consulted and was treated by a psychologist, Merri Hughes.  He saw Ms Hughes on 13 occasions.  The applicant reported to Ms Hughes that, when the offending occurred, he was experiencing significant sleep disturbance, fatigue and difficulties concentrating and he was under significant financial stress.  He had been using methylamphetamine and alcohol as self-medication.  Ms Hughes was of the view that there was a direct link between the applicant’s “presenting issues” and the incident which resulted in the victim’s death.  The applicant expressed deep remorse and sorrow to Ms Hughes, on numerous occasions, for the victim’s death and the trauma that his actions had caused to the victim’s family.  Ms Hughes diagnosed the applicant as suffering from a major depressive disorder with moderate to severe anxious distress.  As a consequence of the incident, the applicant’s health deteriorated to such an extent that his capacity to work in any meaningful way was greatly diminished.
  3. [19]
    The applicant had a prior criminal record with some minor convictions.  The convictions had little, if any, relevance to his sentencing for the offence in question.
  4. [20]
    However, the applicant had a significant prior traffic history.  In summary, that history included:
  1. (a)
    Since September 1995, 17 instances of speeding (seven of which occurred during the period of two years five months before the offending in question) and three instances of drink-driving (in 1995, 1997 and 2005).
  2. (b)
    On 5 January 2018 (that is, while on bail for the present offence), the applicant drove in excess of the speed limit.
  3. (c)
    Seven instances involving the cancellation or suspension of the applicant’s driver’s licence consequent upon his accumulation of demerit points in 1995, 1998, 2004, 2005, 2006 and twice in 2016.  On two of those occasions the applicant had been permitted to drive during a good behaviour period of 12 months.
  4. (d)
    When the offending in question occurred, the applicant’s driver’s licence had again been suspended consequent upon his accumulation of demerit points, but he had been permitted to drive as a result of having been granted a special hardship order on 6 February 2017 in the Magistrates Court.

The sentencing judge’s sentencing remarks

  1. [21]
    The sentencing judge summarised, in his sentencing remarks, the facts and circumstances of the offending.
  2. [22]
    His Honour noted that the maximum penalty for the offence is 10 years’ imprisonment.
  3. [23]
    The sentencing judge said that the applicant’s prior criminal record was of no consequence for sentencing purposes.  However, the applicant’s driving history was of particular relevance.  His Honour described the driving history as “disturbing” and “deplorable” and noted that, at the material time, the applicant was driving as a result of having been granted a special hardship order.
  4. [24]
    His Honour commented that the applicant must have consumed sufficient quantities of methylamphetamine and alcohol prior to the accident for there to have been a residue of both of those substances present when he was tested after the accident.  His Honour acknowledged, however, that it was not part of the Crown’s case that the ingestion of methylamphetamine and the consumption of alcohol had been a cause of the applicant’s dangerous operation of his vehicle.
  5. [25]
    The sentencing judge observed that, although there was no direct evidence on the point, having regard to the good condition of the road and the fine weather at the time of the collision, it appeared that the applicant’s depression, including his significant sleep disturbance, fatigue and difficulties concentrating, may well have had “some input into why [he] crossed the fog line at that critical time”.
  6. [26]
    His Honour noted that there was a dispute between the prosecutor and defence counsel as to whether the applicant’s dangerous operation of his vehicle was attributable to “a relatively brief period of inattention, or whether there was [a] more prolonged period of inattention”.
  7. [27]
    The sentencing judge found that, before the collision, “there was [a] significant period of time involving a failure [by the applicant] to keep a proper lookout, most likely brought about by fatigue [and/or] difficulties with concentration”.
  8. [28]
    His Honour said he thought that the nature of the vehicle the applicant was driving (in particular, the fact that the applicant’s truck was towing the item of wood-chipping equipment) would require “a higher level of concentration whilst driving”.
  9. [29]
    The sentencing judge referred to the applicant’s early plea of guilty and to the applicant’s mental health as explained in a written report dated 30 January 2019 from Ms Hughes.
  10. [30]
    The information before his Honour included a number of written references as to the applicant’s character.  The referees spoke highly of the applicant.  They described him as a caring person who was honest, reliable and hardworking.  The referees also referred to the remorse the applicant had evinced and the shame he had felt about his offending conduct.  His Honour stated that, apart from his traffic history, the applicant appeared to have been a useful member of the community.
  11. [31]
    The sentencing judge accepted that the applicant was “very saddened and remorseful” for his offending conduct.
  12. [32]
    A number of victim impact statements were submitted to his Honour.  They revealed, unsurprisingly, the trauma and tragic consequences suffered by the victim’s family.  The statements spoke of distress, ongoing grief, the need for counselling and the overall devastation at the loss of a wife, mother and daughter.  The trauma included nightmares, night tremors, difficulty in sleeping and outbursts of grief.  The victim’s death also had an adverse financial impact upon her husband and her father. 
  13. [33]
    The sentencing judge referred to previous decisions of this Court that had been cited by the prosecutor and defence counsel, namely R v Hart,[1] R v Maher,[2] R v Allen,[3] R v Huxtable,[4] R v Osborne,[5] R v Schoner[6] and R v Browning.[7]
  14. [34]
    The prosecutor submitted to his Honour that a head sentence for the applicant in the range of three to four years was appropriate.  Defence counsel submitted that a head sentence in the range of two to three years was more appropriate.
  15. [35]
    After imposing the head sentence of three years six months’ imprisonment, the sentencing judge said that, having regard to the mitigating factors (notably, the applicant’s early plea of guilty, his genuine remorse and otherwise having been a useful member of the community), his Honour had decided to order that the applicant be eligible for parole after serving 12 months’ imprisonment, rather than setting parole eligibility at the onethird date.

The applicant’s grounds of appeal

  1. [36]
    The applicant relies upon two grounds of appeal.  First, the applicant alleges, in essence, that the sentencing judge erred by finding that the offending conduct did not involve “momentary inattention” and also erred by failing to give sufficient reasons for that finding.  Secondly, the applicant alleges that the sentence imposed was manifestly excessive.

The Attorney-General’s ground of appeal

  1. [37]
    The Attorney-General relies upon one ground of appeal which alleges that the sentence imposed by his Honour was manifestly inadequate.

The applicant’s submissions

  1. [38]
    As to the applicant’s first ground of appeal, counsel for the applicant submitted that there was no evidence before the sentencing judge to suggest anything more than “momentary inattention” by the applicant, which had been brought about by his depression, significant sleep disturbance, fatigue and difficulties in concentrating.  Counsel submitted, in the alternative, that the characterisation of the applicant’s period of inattention as “significant” was erroneous and that the period of inattention should have been characterised as “brief”.
  2. [39]
    Counsel contended that it followed from the absence of any evidence to support the impugned finding that his Honour’s reasons for making that finding were insufficient.
  3. [40]
    It was submitted that the sentencing judge’s erroneous finding as to the extent of the applicant’s inattention had a material impact upon the sentence imposed.  Accordingly, this Court should set aside the sentence and resentence the applicant.
  4. [41]
    As to the applicant’s second ground, counsel for the applicant argued that the sentence imposed was “so out of step with other more or less comparable cases” as to render the sentence unjust.  Counsel referred to R v Gruenert; Ex parte Attorney-General (Qld),[8] R v  Boubaris,[9] R v Lightbody,[10] Maher, Huxtable, Osborne, Schoner and Browning.  It was submitted that this Court should set aside the sentence and resentence the applicant.  It was also submitted that, upon resentencing, the applicant should receive a sentence in the order of two years’ imprisonment suspended after six months.  Counsel emphasised the applicant’s early plea of guilty, his high level of remorse, the effect of his offending upon his mental health and the likely impact upon his mental health of an ongoing period of detention.
  5. [42]
    As to the Attorney-General’s appeal, counsel for the applicant submitted that the appeal could not succeed.  There was no basis in the facts and circumstances of the offending in the comparable cases to suggest that the sentence imposed was manifestly inadequate.  In any event, counsel argued that the head sentence and the minimum term were consistent with the sentencing outcome contended for by the prosecutor before the sentencing judge.  The present case was not an exceptional case where the Attorney-General should not be bound by the prosecutor’s conduct of the case at first instance or where the sentencing judge did not appreciate the seriousness of the offending.  Counsel referred to R v Flew[11] and R v Henderson; Ex parte Attorney-General (Qld).[12]
  6. [43]
    Counsel also submitted that if, contrary to his submission, the Court should find that the sentence imposed was manifestly inadequate, the Court should invoke its residual discretion and dismiss the appeal.  Counsel noted that the applicant was eligible to be considered for release on parole on 4 February 2020 and he should not now, some eight months after the sentence was imposed, lose “the freedom that has been promised beyond the sentence imposed at first instance”.[13]

The Attorney-General’s submissions

  1. [44]
    As to the applicant’s first ground of appeal, counsel for the Attorney-General submitted that the sentencing judge’s finding that, before the collision, “there was [a] significant period of time involving a failure [by the applicant] to keep a proper lookout” was well open on the evidence.  There was no evidence from the applicant to the contrary.  The only account from the applicant was his statement to Ms Hughes to the effect that he was unable to remember important parts of his driving.  Counsel argued that the use of expressions such as “momentary inattention” can be unhelpful and distract from the real issue before a sentencing judge, which is the level of seriousness of the actual driving.  Counsel referred to R v Burnett-Greenland[14] citing R v MacDonald.[15]
  2. [45]
    As to the Attorney-General’s appeal, counsel for the Attorney-General challenged the head sentence and, consequently, the point at which the appellant reaches parole eligibility.  Counsel acknowledged that the head sentence imposed by the sentencing judge fell within the range contended for by the prosecutor at first instance.  However, the parole eligibility point was a little less than that submitted by the prosecutor to be appropriate, namely “one-third (of the head sentence) and not less than that”.  Counsel also acknowledged that it is only in an exceptional case that this Court will increase a sentence to a level higher than that sought by the prosecutor at first instance; in particular, where the sentencing judge failed to appreciate the seriousness of the offending or where this Court’s intervention is necessary to maintain public confidence in the administration of justice.[16]
  3. [46]
    Counsel submitted that, although the applicant’s driving did not involve a “prolonged period of overtly dangerous driving”, his offending was nevertheless very serious in that:
    1. (a)
      The size and type of vehicle being driven by the applicant required him to exercise additional care towards others.
    2. (b)
      The applicant was aware that he had been experiencing significant sleep disturbance, fatigue and difficulties concentrating.
    3. (c)
      The applicant failed to keep a proper lookout for a significant period, namely up to a distance of 105 m and for about seven seconds.
    4. (d)
      The applicant’s dangerous operation of his vehicle not only caused the victim’s death, but also resulted in her family (some of whom were present at the scene) suffering severe emotional distress.
    5. (e)
      The applicant had a deplorable traffic history and, at the time, was driving legally only as a result of the grant of the special hardship order.
    6. (f)
      The appellant drove his vehicle after having consumed alcohol and ingested methylamphetamine.  Although the time of the consumption and ingestion could not be ascertained precisely, it was sufficiently proximate to the time of the collision that both substances were revealed upon testing.  Logically, he had either not drunk alcohol that day, and hence had been driving earlier that day with a higher blood alcohol concentration, or he had drunk alcohol on the day in question in the knowledge that he would be driving.
    7. (g)
      The applicant was not youthful or inexperienced for sentencing purposes.
    8. (h)
      After the date of the collision and before he was sentenced the applicant exceeded the speed limit while driving.  That postoffence conduct was further evidence of his poor attitude towards road laws.
  4. [47]
    Although it was not part of the Crown’s case that the ingestion of methylamphetamine and the consumption of alcohol had been a cause of the applicant’s dangerous operation of his vehicle, it was submitted that the presence of both substances in the applicant’s blood and saliva at the time of the collision, combined with his deplorable traffic history, reflected his reckless attitude towards, and a persistent disregard for, road laws.  The charged offence was not an uncharacteristic aberration.  Rather, it demonstrated a continuing attitude of disobedience of road laws.  Personal and general deterrence were important sentencing factors.
  5. [48]
    Counsel for the AttorneyGeneral made submissions on the previous cases referred to by the sentencing judge in his sentencing remarks.  Counsel argued that the facts and circumstances of the previous cases were relevantly distinguishable from the present case.
  6. [49]
    It was submitted that the sentence imposed by his Honour in the present case failed to recognise that “the tragic outcome of this period of driving by a man who has such an horrendous attitude towards the road rules [required] the imposition of a sentence higher than what [may] be regarded as the usual range of sentences for the objective features of his driving”.  There were, according to counsel, “sufficient differences” between the present case and each of the previous cases referred to by his Honour to justify “a notably higher sentence than that which was imposed”.
  7. [50]
    Counsel argued that in the present case the considerations that ordinarily inform the exercise of the residual discretion have no weight.  In particular, there was no question of returning the applicant to custody because he has been imprisoned since he was sentenced; the applicant is not youthful or deserving of leniency; and there was nothing to suggest that the applicant has been wholly or substantially rehabilitated since the sentence was imposed.  Further, counsel argued that, on the material before this Court, it is apparent that the Attorney-General was prepared to prosecute the appeal on 12 June 2019, but had been “frustrated by the attitude of the applicant”.  Accordingly, so it was argued, the applicant cannot now rely upon the delay in the hearing of the appeal in support of his argument concerning the residual discretion.
  8. [51]
    It was contended that if the Court decided to allow the Attorney-General’s appeal then, upon re-sentencing, the applicant should receive a sentence of five years’ imprisonment with parole eligibility at the onethird date (that is, after 20 months).
  9. [52]
    As to the applicant’s second ground of appeal, counsel for the AttorneyGeneral submitted that if the Attorney’s appeal is dismissed, the Court should nevertheless find, on the basis of the submissions relied upon by counsel in the Attorney’s appeal, that the sentence imposed was not manifestly excessive.

The applicant’s first ground of appeal: its merits

  1. [53]
    The applicant was convicted, on his plea of guilty, of having operated his vehicle “dangerously” on School Road and having caused the victim’s death.  It was therefore not in contest at the sentencing hearing that he had driven dangerously and that the dangerous manner of his driving had caused the victim’s death.
  2. [54]
    At the sentencing hearing, the prosecutor submitted that the applicant’s dangerous operation of his vehicle involved “a period of time of prolonged inattention and failing to keep a proper lookout”.  There was “more than just a brief inattentive period”.  It was “prolonged”.
  3. [55]
    By contrast, at the sentencing hearing, defence counsel submitted that there was “no explanation” for the dangerous manner of the applicant’s driving “other than at some point of time he became inattentive”.  Defence counsel observed that the applicant had been “attentive enough to drive around the bend without any issue”.  It was submitted that “at some point … [the applicant’s] attention must have wandered”, but it was “difficult to draw a conclusion that it was for a prolonged period because [that was unknown]”.  Defence counsel contended that if the applicant’s dangerous operation of his vehicle did not involve merely “momentary inattention”, then it was the “next smaller level up”.
  4. [56]
    As I have mentioned, the sentencing judge found that, before the collision, “there was [a] significant period of time involving a failure [by the applicant] to keep a proper lookout, most likely brought about by fatigue [and/or] difficulties with concentration”.
  5. [57]
    His Honour’s conclusion that the applicant had failed to keep a proper lookout for “a significant period of time” (in particular, the use of the adjective “significant”) reflected an evaluative judgment by his Honour based on all of the relevant facts and circumstances.
  6. [58]
    The relevant facts and circumstances included:
  1. The victim’s car was parked legally and the outer edge of her car was about 20 cm  30 cm inside the fog line marked on the road.
  2. The victim’s car was parked behind her husband’s utility.
  3. When the applicant’s vehicle reached the victim’s parked car, the victim had alighted from her car and was standing near the driver’s door of her car.  The driver’s door was shut.
  4. Before his vehicle reached the victim’s parked car, the applicant had driven around a slight lefthand bend.  At that stage there was at least 105 m of straight road and an unobstructed line of sight to the place where the victim’s car and her husband’s utility were parked.  At the speed limit, it would have taken the applicant about 7.6 seconds to travel that distance.
  5. If the applicant had been paying attention and keeping a proper lookout, he should have had the victim’s car and, perhaps, her husband’s utility under observation for about 7.6 seconds.
  6. The applicant did not brake, swerve or take any other action to avoid the collision.
  7. During the period leading up to the collision, the applicant had been feeling very depressed and was experiencing significant sleep disturbance, fatigue and difficulties concentrating.
  8. At the time of the collision, the applicant had a blood alcohol reading of 0.037 per cen and an unquantified concentration of methylamphetamine.
  9. The road was in good condition and the weather was fine.
  1. [59]
    It is apparent, from the relevant facts and circumstances, that when the applicant drove around the slight lefthand bend either the victim had already alighted from her vehicle or she had not.  If she had already alighted from her vehicle, the applicant should have had the victim, as well as her car and, perhaps, her husband’s utility, under observation for about 7.6 seconds before the accident.  If the victim had not already alighted from her car, the applicant should have had the victim’s car and, perhaps, her husband’s utility under observation during that period and, also, the victim under observation for a lesser period as she alighted from her car, closed the driver’s door and stood near the door.
  2. [60]
    In my opinion, the sentencing judge was entitled, having regard to all the relevant facts and circumstances, to conclude by inference that, for a “significant period of time” prior to the collision, the applicant had failed to keep a proper lookout and that this failure was likely brought about by “fatigue [and/or] difficulties with concentration”.  On the evidence before his Honour, the conclusion he reached by inference was not only open, but was the only reasonable inference to be drawn.  His Honour’s characterisation of the applicant’s period of inattention as ‘significant’ was not erroneous.
  3. [61]
    Counsel for the applicant’s submission as to the sufficiency of his Honour’s reasons therefore falls away.
  4. [62]
    The applicant’s first ground of appeal is without merit.

The applicant’s second ground of appeal and the Attorney-General’s sole ground of appeal: the relevant principles relating to manifest excess and manifest inadequacy

  1. [63]
    It is necessary, in determining whether a sentence is manifestly excessive or manifestly inadequate, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the offender’s criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender’s personal circumstances and antecedents.
  2. [64]
    Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law.  See Barbaro v The Queen.[17]  In the present case, the sentencing judge was obliged to sentence the applicant in accordance with the governing principles set out in Part 2 of the Penalties and Sentences Act 1992 (Qld).  This Court can intervene if the appellant demonstrates either an express or an implied material error.  Express error includes acting on a wrong principle (for example, mistaking the law or the facts or taking into account an irrelevant consideration).  Implied error arises where the sentencing outcome is so unreasonable or unjust that this Court must conclude that a substantial wrong has occurred.  The discretion conferred on sentencing judges is, of course, of fundamental importance and this Court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion differently.  See Lowndes v The Queen[18] and Lacey v Attorney-General (Qld).[19]
  3. [65]
    A sentencing range for comparable cases is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive or manifestly inadequate.  A range of sentences customarily imposed is a yardstick for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  Consistency in sentencing means that like cases must be treated alike and different cases must be treated differently.  See R v Pham.[20]  However, the scope for material differences in each case in relation to relevant sentencing factors, and the weight to be given to them, must be borne in mind.  The limits of the guidance afforded by comparable cases are therefore flexible rather than rigid.
  4. [66]
    When this Court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this Courts decision on the sentencing outcome does not, of itself, fix the upper or lower limit of a sentencing range.
  5. [67]
    In Barbaro, French CJ, Hayne, Kiefel and Bell JJ said in relation to the notion of an available range” of sentences and the notions of manifest excess” and manifest inadequacy”:

Reference to an available range’ of sentences derives from the well-known principles in House v The King ((1936) 55 CLR 499).  The residuary category of error in discretionary judgment identified (House at 505) in House is where the result embodied in the courts order is unreasonable or plainly unjust’ and the appellate court infers that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance’.  In the field of sentencing appeals, this kind of error is usually referred to as manifest excess’ or manifest inadequacy’.  But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied.  It is, then, common to speak of a sentence as falling outside the available range of sentences.

The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some substantial wrong has in fact occurred’ (House at 505) in fixing that sentence.  For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.

Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an available range’ of sentences, stating the bounds of an available range’ of sentences is apt to mislead.  The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen.  If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed.  Fixing that different sentence neither permits nor requires the resentencing court to determine the bounds of the range within which the sentence should fall [26] - [28].” (original emphasis)

The applicant’s second ground of appeal and the AttorneyGeneral’s sole ground of appeal: comparable cases

  1. [68]
    I have considered a number of decisions of this Court involving appeals against sentence for dangerously operating a motor vehicle, contrary to s 328A(4)(a) of the Code.  I will discuss the cases of primary relevance.
  2. [69]
    In Gruenet, the respondent was driving a truck on a highway.  He had a clear view for a length of the highway which allowed him to overtake safely.  The speed limit was 100 km per hour.  The respondent was behind a utility that was towing a caravan.  The utility’s speed was between 70 and 80 km per hour.  The respondent began to overtake the utility, but then veered into the lane in which the utility was travelling before his truck had fully passed the utility.  The driver of the utility moved to the left of the road and onto a grass verge in order to avoid a collision.  The respondent’s truck did not come into contact with the utility.  However, the driver of the utility lost control of his vehicle and it overturned.  He was partially thrown out of his vehicle and trapped under it.  He died as a result of the injuries he suffered.  The respondent was convicted after a trial of the dangerous operation of a motor vehicle causing death.  The maximum penalty was seven years’ imprisonment.  The trial judge sentenced the respondent to 18 months’ imprisonment, wholly suspended, with an operational period of two years.  His Honour described the respondent’s conduct as involving “momentary inattention.  The respondent had no prior convictions of a criminal nature or for traffic offences.  He had been driving for more than 30 years and was described by his Honour as having “an exemplary character.  On appeal by the AttorneyGeneral, this Court held that the trial judge did not err in characterising the respondent’s conduct as involving “momentary inattention.  The sentence was “within the proper range although at the lower end of that range [19].  The Attorney’s appeal was dismissed.
  3. [70]
    In Maher, the applicant was driving a utility on a road.  The victim was riding his motorcycle on the road in the opposite direction.  The applicant turned right at an intersection across the path of the oncoming motorcycle.  The utility collided with the motorcycle and the victim was killed.  The impact occurred in the centre of the victim’s lane.  The applicant, who was aged 44 at the time of the offending, pleaded guilty to the dangerous operation of a motor vehicle causing death.  The maximum penalty was 10 years’ imprisonment.  The sentencing judge found that a substantial length of the road in the vicinity of the point of the collision was straight.  There was no obstruction to vision, nor was there other traffic to obscure the applicant’s view of the motorcycle or the victim’s view of the utility.  His Honour found that there must have been “a very significant period when [the applicant] should have had [the victim and his motorcycle] under observation.  On that basis, his Honour was of the view that the collision could not be described as having arisen from “momentary inattention [26].  His Honour thought that there was “a serious and in terms of driving accidents, prolonged failure to keep a proper lookout [26].  The applicant must have been “so tired that [he] should not have been driving [26].  The applicant was sentenced to three years’ imprisonment, to be suspended after serving nine months, with an operational period of three years.  The applicant had some prior criminal convictions and a traffic history, but the sentencing judge observed that the previous offending was confined largely to events which had occurred when the applicant was a young man.  This Court dismissed the applicant’s appeal against sentence.  It held that the sentence imposed by the sentencing judge reflected a consistency of approach with previous sentences for broadly comparable conduct.  His Honour was entitled to reject the applicant’s submission that his driving should be characterised as involving “momentary inattention”.  Further, the increase in the maximum penalty for the offence from seven years to 10 years’ imprisonment in 2007 was “a clear indication of the legislative intent that dangerous driving causing death is to attract a greater level of penalty than might hitherto have been the case [43].  This Court was not persuaded that his Honour erred in his approach to the sentence.  The applicant’s contention that the sentence imposed was manifestly excessive was rejected.
  4. [71]
    In Huxtable, the applicant was driving an unladen tip truck, which was towing a trailer, along a road to a quarry.  He was travelling behind a Holden Commodore driven by Ms Calder.  A Hyundai Getz driven by Ms Schumacher was travelling in the opposite direction.  Ms Schumacher’s son was a passenger in her vehicle.  Ms Calder slowed her Holden Commodore and stopped at an intersection, waiting to turn right.  The righthand indicator of Ms Calder’s vehicle was flashing.  The applicant collided with the rear of the Holden Commodore and forced it cross the centre line into the path of the Hyundai Getz.  The resulting collision between the Holden Commodore and the Hyundai Getz caused Ms Calder’s death, Ms Schumacher to suffer severe injuries and her son to sustain relatively minor injuries.  At the point of the collision the road was divided into four lanes, two in each direction.  The Holden Commodore was in the righthand southbound lane waiting to turn right.  There was a left lane which permitted southbound vehicles safely to pass a turning vehicle.  The speed limit was 100 km per hour.  The road was level and straight.  Yellow warning signs alerted drivers of the approaching intersection.  The weather was fine and the visibility good.  Prior to the collision, the applicant’s truck was travelling at 84 km per hour.  During the threesecond period prior to impact, the applicant applied moderate to heavy braking.  The essence of the applicant’s criminality was his failure to pay proper attention and his failure to follow at a safe distance.  Had he been paying proper attention, the applicant would have been able to stop in time to avoid the accident.  Had he been following at a safe distance, the applicant should have been able to swerve to the left to avoid the accident.  At the point of impact, his truck was travelling at 79 km per hour.  The applicant, who was aged 56 at the time of the offending, entered a plea of guilty to the dangerous operation of a motor vehicle causing death and grievous bodily harm.  The maximum penalty was 10 years' imprisonment.  The applicant did not have any relevant prior criminal convictions.  He did, however, have a relevant traffic history, including previous offences involving the consumption of alcohol and speeding offences.  However, alcohol and speeding were not factors in the offence in question.  The applicant was sentenced to five years' imprisonment, suspended at 15 months, with an operational period of five years.  This Court allowed the applicant’s appeal on the basis that the sentence was manifestly excessive.  A sentence of three years six months' imprisonment, suspended after 14 months, with an operational period of three years six months was substituted.  This Court observed that the dangerous driving by the offender in Maher was more serious than the dangerous driving by the applicant because the offender in Maher drove in the knowledge that he was fatigued.  Also, the offender in Maher had a directly relevant prior conviction for dangerous driving and less mitigation than the applicant.
  5. [72]
    In Osborne, the applicant drove his overwidth laden truck past a group of cyclists on a road near Townsville.  The cyclists were riding in single file.  The edge of the applicant’s wide load struck one of the cyclists.  This resulted in the death of one cyclist and grievous bodily harm to two others.  The applicant pleaded guilty to the dangerous operation of a motor vehicle causing death and grievous bodily harm.  The maximum sentence was 10 years' imprisonment.  The applicant was sentenced to three years six months’ imprisonment, suspended after 14 months, for an operational period of four years.  On appeal, the applicant, who was then aged 65, did not challenge the head sentence of three years six months’ imprisonment.  However, his challenge to the period he was required to serve in custody was upheld.  This Court was of the opinion that the suspension of the applicant’s “significant head sentence” after 14 months “did not give  adequate recognition to his compelling mitigating circumstances”[21].  Those circumstances included a lifetime as a productive and lawabiding member of the community, more than 20 years’ service in the military, his prompt and profound remorse, and his very early notification of his intention to plead guilty.  The sentence imposed at first instance was varied so that the term of three years six months’ imprisonment was suspended after nine months instead of 14 months.
  6. [73]
    In Schoner, the applicant pleaded guilty on the fourth day of her trial to the dangerous operation of a motor vehicle causing death and grievous bodily harm, and to a number of other charges.  The maximum penalty for the dangerous operation offence was 10 years' imprisonment.  The applicant was sentenced, for the dangerous operation offence, to five years' imprisonment, suspended after two years, with an operational period of five years.  She received substantially lesser sentences for the other offences.  The applicant had driven a car for a distance of about 1,600 km over a period of about 18 hours.  At the relevant time, she was driving north on the New England Highway, a dual carriageway divided by a double white line.  As she approached a lefthand bend, the applicant steered her car across the double white line and travelled around the bend on the wrong side of the road.  Her car collided with a Toyota Echo being driven in the opposite direction on the correct side of the road.  After that collision, the applicant’s car continued on the wrong side of the road and collided with another car that was travelling behind the Toyota Echo.  The applicant’s dangerous driving involved her travelling for 300 m, at a speed between 90 and 100 km per hour, on the wrong side of the road.  One of the passengers in the Toyota Echo was killed.  The driver and the other passenger in the Toyota Echo were injured.  One of them suffered very serious injuries.  At the time of the collision, the applicant had been disqualified from holding a driver’s licence as a result of her having driven under the influence of alcohol.  About 75 minutes before the collision, the applicant had received an infringement ticket for speeding.  On the date of the collision, there were low levels of amphetamine and methylamphetamine in the applicant’s blood.  She was not charged with being adversely affected by drugs.  At the material time she had not been speeding.  The applicant was aged 37 at the time of the offence.  She had a criminal history.  In 2000, she was sentenced to terms of 18 months’ imprisonment in Victoria on charges of armed robbery.  She was also sentenced for an offence of attempted theft.  The sentences were suspended and appeared to have been completed satisfactorily.  The applicant’s traffic history in Victoria included offences of speeding in 2011 and 2013 and, on two occasions, of using a handheld telephone while driving.  Her traffic history in Queensland included an offence committed in October 2013 of driving with a blood alcohol level above the general, but not over the mid alcohol limit.  Between the date of that offence and the date of the offence in question, the applicant committed three speeding offences in Queensland.  At the time of the offending in question, the applicant’s period of disqualification had not expired.  The applicant’s appeal against sentence was allowed.  For the dangerous operation offence, this Court substituted a sentence of four years' imprisonment, suspended forthwith, with an operational period of four years.  On 9 October 2015, when this Court delivered judgment, the applicant had been in custody since 1 February 2014.  The sentences imposed at first instance for the other offences were not disturbed.  This Court said that previous decisions, including Maher, Huxtable and Osborne, did not support the head sentence of five years' imprisonment imposed on the applicant.  Although some of the aggravating factors in the applicant’s case were of greater significance than those in Huxtable and Osborne, the offender in each of those cases was “a professional driver with a higher duty of care”[22].  The applicant’s driving bore some similarity to that of the offender in Maher, at least because both cases involved fatigue that was “operative for an appreciable, though relatively short, period of time” before the accident occurred.[23]  The sentence imposed on the applicant was “outside the boundaries of the proper exercise of the sentencing discretion, and was accordingly manifestly excessive”[24].
  7. [74]
    There are some comparable features between some of the previous decisions of this Court involving appeals against sentence for dangerously operating a motor vehicle, contrary to s 328A(4)(a) of the Code, but there are also distinguishing features.  For example:
  1. In Gruenet, the maximum penalty was seven years’ imprisonment compared to 10 years’ imprisonment in the present case.  The offender in Gruenet went to trial, whereas the applicant in the present case pleaded guilty.  The offender’s conduct in Gruenet was characterised as involving “momentary inattention”, whereas the sentencing judge in the present case characterised the applicant’s conduct as involving a greater degree of culpability.  The offender’s driving history in Gruenet was of “an exemplary character”, whereas the applicant in the present case had a “disturbing” and “deplorable” driving history.
  2. In Maher, the objective seriousness of the offender’s driving was similar to that of the applicant in the present case.  Both the offender in Maher and the applicant in the present case pleaded guilty.  However, the personal circumstances and antecedents of the offender in Maher (in particular, his traffic history) were better than the personal circumstances and antecedents of the applicant in the present case.
  3. The dangerous driving by the applicant in the present case was more egregious than the dangerous driving by the offender in Huxtable in that the applicant in the present case knew that he had been experiencing significant sleep disturbance, fatigue and difficulties concentrating.  The applicant in the present case entered his plea of guilty earlier than the offender in Huxtable.  The offender in Huxtable caused grievous bodily harm to one of the victims as well as causing the death of another victim, whereas the applicant in the present case caused the death of the victim but did not injure anyone else.  The personal circumstances and antecedents of the offender in Huxtable were better than those of the applicant in the present case.
  4. In Osborne, the offender’s dangerous driving was less serious than the driving of the applicant in the present case.  Both the offender in Osborne and the applicant in the present case entered pleas of guilty.  The personal circumstances and antecedents of the offender in Osborne were better than those of the applicant in the present case.
  5. In Schoner, the objective seriousness of the offender's driving was similar to that of the applicant in the present case, although the offender in Schoner was not driving a vehicle of a size and type that required a special licence to drive it.  The applicant in the present case entered his plea of guilty significantly earlier than the offender in Schoner.  The offender in Schoner caused grievous bodily harm to one of the victims as well as causing the death of another victim, whereas the applicant in the present case caused the death of the victim but did not injure anyone else.  The driving history of the applicant in the present case was worse than that of the offender in Schoner.
  1. [75]
    In my opinion, the culpability of an offender who has dangerously operated a motor vehicle and has caused the death of another person, and the degree of seriousness of the offending conduct, should be evaluated by reference to the offender’s acts or omissions which render the offender’s operation of his or her vehicle “dangerous”, in the context of the facts and circumstances in which the acts were done or the omissions were made, including any relevant circumstances specified in the definition of “operates, or in any way interferes with the operation of, a vehicle dangerously” in s 328A(6) of the Code.  An offender’s culpability, and the degree of seriousness of the offending conduct, is not to be evaluated merely by reference to adjectives or descriptive labels.  Similarly, comparisons between the culpability of offenders in different cases, and comparisons between the degree of seriousness of offending conduct in different cases, should be made by reference to each offender’s relevant acts or omissions, in the context of the relevant facts and circumstances as a whole, and not merely by reference to adjectives or descriptive labels.

The applicant’s second ground of appeal: its merits

  1. [76]
    In my opinion, the facts and circumstances of the applicant’s offending in the present case were serious.  There is no doubt that it is extremely dangerous for a person to operate a motor vehicle while he or she is suffering from fatigue and experiencing difficulties in concentrating, especially when the vehicle is of a size and type that requires a special licence to drive it.  The potential for catastrophic consequences is obvious.
  2. [77]
    The accident occurred as a result of the applicant’s failure to pay attention and keep a proper lookout.  He should have had the victim’s car and, perhaps, her husband’s utility under observation for about 7.6 seconds.  If the applicant had been observing the victim’s car for about 7.6 seconds, he would have seen and avoided striking the victim.  He did not brake, swerve or take any other action to avoid the collision.  The applicant’s dangerous operation of his vehicle was probably brought about by fatigue and difficulties in concentration.  He was aware that he had been experiencing significant sleep disturbance, fatigue and difficulties concentrating.  The applicant should not have been driving if he was unable to focus properly upon his driving and the surrounding environment, including upon people and other vehicles on or in the vicinity of the road.
  3. [78]
    The sentencing judge identified the relevant aggravating and mitigating factors.
  4. [79]
    The applicant was a man of mature years.  He did not have the mitigation of youth or inexperience.
  5. [80]
    The applicant’s previous traffic offences did not aggravate the seriousness of the offence.  Although the applicant was not to be punished again for his past traffic offending, his traffic history was relevant to his moral culpability for the offending in question.  In particular, his traffic history demonstrated that the applicant was not entitled to leniency on the ground that he was a first offender in respect of traffic matters or that the offending in question was an uncharacteristic aberration.  The applicant’s previous traffic offences underscored the importance of personal deterrence as a sentencing factor.  His traffic history manifested a continuing attitude of disobedience of road laws.  See Veen v The Queen [No 2].[25]  General deterrence was also of importance.
  6. [81]
    I am satisfied that the applicant’s contention in his second ground of appeal that the sentence of three years six months’ imprisonment, with parole eligibility after 12 months, was manifestly excessive, is without merit.  The sentence was commensurate with the seriousness of the offence after taking into account the maximum penalty, the facts and circumstances of the offending, the vulnerability of the victim, the trauma and tragedy suffered by the victim’s family, the sentencing dispositions in previous cases with at least some features comparable to the present case, the applicant’s personal circumstances and antecedents (including his mental health and his driving history), and all aggravating and mitigating factors.  The sentence was reasonably open to the sentencing judge on a proper exercise of his discretion.  The sentence was not unreasonable or plainly unjust.  Error cannot be implied from the sentencing outcome.

The AttorneyGeneral’s sole ground of appeal: its merits

  1. [82]
    The head sentence imposed by the sentencing judge was consistent with the sentencing outcome contended for by the prosecutor at the sentencing hearing.
  2. [83]
    I accept that the head sentence and the minimum term imposed by his Honour were at or towards the lower end of the sentencing outcome open to his Honour on a proper exercise of his discretion.  However, I am not persuaded, having regard to all the relevant facts and circumstances and all the relevant sentencing factors (including the sentencing dispositions in previous cases with at least some features comparable to the present case) that:
  1. his Honour failed to appreciate the seriousness of the applicant’s offending;
  2. this Court’s intervention is necessary to maintain public confidence in the administration of justice; or
  3. the head sentence or the minimum nonparole period is unreasonable or plainly unjust.
  1. [84]
    The AttorneyGeneral’s sole ground of appeal has not been made out.

Conclusion

  1. [85]
    Accordingly, I would refuse to grant the applicant leave to appeal and I would dismiss the AttorneyGeneral’s appeal.

Footnotes

[1]  [2008] QCA 199.

[2]  [2012] QCA 7.

[3]  [2012] QCA 259.

[4]  [2014] QCA 249.

[5]  [2014] QCA 291.

[6]  [2015] QCA 190.

[7]  [2018] QCA 337.

[8]  [2005] QCA 154.

[9]  [2014] QCA 199.

[10]  [2019] QCA 61; (2019) 88 MVR 95.

[11]  [2008] QCA 290 [28].

[12]  [2013] QCA 63 [51].

[13]R v Palmer; Ex parte Attorney-General (Qld) [2019] QCA 133 [29].

[14]  [2017] QCA 159 [28]; (2017) 81 MVR 16.

[15]  [2014] QCA 9; (2014) 244 A Crim R 148 [17].

[16]  See Henderson [51].

[17]  [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).

[18]  [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

[19]  [2011] HCA 10; (2011) 242 CLR 573 [62] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

[20]  [2015] HCA 39; (2015) 256 CLR 550 [28] (French CJ, Keane & Nettle JJ).

[21]Osborne [49].

[22] Schoner [79].

[23] Schoner [79].

[24] Schoner [80].

[25]  [1988] HCA 14; (1988) 164 CLR 465, 477.

Close

Editorial Notes

  • Published Case Name:

    R v Muirhead; R v Muirhead; Ex parte Attorney-General (Qld)

  • Shortened Case Name:

    R v Muirhead; R v Muirhead; ex parte Attorney-General (Qld)

  • MNC:

    [2019] QCA 244

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Buss AJA

  • Date:

    12 Nov 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment DC265/18 (No Citation) 04 Feb 2019 Date of Conviction (Jones DCJ).
Appeal Determined (QCA) [2019] QCA 244 12 Nov 2019 Defendant's application for leave to appeal against sentence refused; Attorney-General's appeal against sentence dismissed: Fraser and McMurdo JJA and Buss AJA.

Appeal Status

{solid} Appeal Determined (QCA)