The Queen v Newman[1997] QCA 143

COURT OF APPEAL

MACROSSAN CJ

FITZGERALD P

McPHERSON JA

CA No 88 of 1997

THE QUEEN

v.

ADAM MAXWELL NEWMANApplicant

BRISBANE

DATE 08/05/97

JUDGMENT

THE CHIEF JUSTICE: The applicant was sentenced to a term of three years' imprisonment having been convicted after a trial of dangerous driving causing death. He was 32 years of age at the time of the offence and he had a large number of previous traffic convictions. 

The accident in which he, with his vehicle, was involved occurred on the Old Landsborough Road. On that road he came into collision with a vehicle in which the deceased was travelling proceeding in the opposite direction to the applicant. The driver of the vehicle in which the deceased was travelling described himself as proceeding in a southerly direction towards Beerwah and as having crossed a bridge called the Mellum Creek Bridge. That driver said that he was proceeding at no more than 50 kilometres an hour and having crossed the bridge was starting to go up a rise when the applicant's vehicle came around a corner and went straight across in front of him so that it covered the whole of the roadway. The driver said that he did all he could by way of moving appropriately out of the path of the applicant's vehicle but he was unable to avoid it, there was a collision and the passenger in that vehicle was killed.

The accident happened in circumstances were there were some restrictions upon the roadway governing the approach of traffic in the direction the applicant was travelling. These would have had some effect, one would think, upon the speed which the applicant should have driven at. The exhibits have been available for us to look at and photographs included there show that the applicant would have had to drive through a "Road Work Ahead" sign, then through a further sign indicating that there was a narrow bridge, another again warning of a "Give Way" sign and a 60 kph indication and a further one again indicating that the speed to be adopted was 40 kph.

The jury clearly found that the applicant was driving too fast in the circumstances and that that is what constituted the dangerous driving causing death. The Judge, in sentencing, adopted the same approach and simply declared that the applicant was driving too fast. 

The criminal history dealing with relevant matters is a very bad one. There were other less relevant matters such as drug related offences, receiving and wilful damage in respect of all of which fines only were imposed and there was another conviction for assault where the applicant had been sentenced to three months' imprisonment and there were various offences described as street offences. 

However, looking back at the applicant's driving history and starting at about 1982 we see that he was convicted in that year of driving with a blood alcohol concentration of point 12 per cent. In 1987 there was a conviction for - or an offence of exceeding the speed limit by 15 to 29 kilometres an hour and the amount required under a traffic notice was paid. In 1988 he was convicted of driving with the prescribed alcohol concentration excess - that is, at point 07 - and he was fined. In 1989 he again received a traffic notice for driving exceeding the speed limit by 15 to 29 kilometres an hour. Similarly, in 1991. In 1992, an offence of driving with an excess of alcohol beyond the prescribed concentration.  In 1995, he received a traffic notice for exceeding a speed limit by a speed under 15 kilometres an hour in a built-up zone. Again, in 1995 he exceeded the speed limit and paid in accordance with the traffic notice the excess being between 15 and 29 kilometres an hour. After the present offence was committed and apparently while the applicant was on bail he was caught - that is the way it is put - travelling in excess of 30 kilometres per hour over the speed limit. The penalty which was imposed in respect of that matter is not specified.

Counsel appearing for the applicant referred to a number of cases including the matter of Gartside which involved a 21 year old who had no previous traffic convictions and who was sentenced to 18 months' imprisonment. He had been what was described in the submission to us as skylarking. That caused him to lose control of the vehicle and caused the death of a person travelling in his car. 

We were referred also to Gardiner involving a 31 year old who had numerous traffic convictions and who was travelling at excessive speed and he was sentenced to a term of imprisonment of three years for a similar offence. That hardly provides any support for the applicant's appeal in the present case. 

We were referred again to another case Welch and I shall give the reference. It is CA64/96 and it was an Attorney's appeal. That, however, was a very particular case with a number of special factors operating and in my opinion it provides no support and has no relevance for the present case. I give the references to Gartside which is CA374/94 and Gardiner, CA452/95. The argument for the applicant is that a sentence of two years imprisonment should have been imposed or one not exceeding that so that the sentence actually imposed should be regarded as manifestly excessive. Counsel appearing for the respondent contends that the sentence was appropriate and should be maintained.

In view of the applicant's quite appalling traffic history in particular it seems to me that it should be concluded that the sentence cannot be regarded as manifestly excessive and I would refuse the application.

THE PRESIDENT: I agree.

McPHERSON JA: I also agree.

THE CHIEF JUSTICE: The application is refused.