The Queen v Whye[1997] QCA 320

COURT OF APPEAL

McPHERSON JA

PINCUS JA

BYRNE J 

CA No 234 of 1997 

THE QUEEN 

v. 

ANTHONY JAMES ERNEST WHYEApplicant

BRISBANE

DATE 17/07/97

JUDGMENT

PINCUS JA:  This is an application for leave to appeal against a sentence imposed in the District Court.  The applicant, 29 years of age, was convicted of an offence committed in March last year on a plea of guilty.  He was charged with having driven a motor vehicle dangerously.  Three circumstances were charged as aggravating the offence.  The plea was guilty and the sentence five years imprisonment with a recommendation for parole after two years; there was an absolute disqualification from driving.  It is complained, on behalf of the applicant, that the sentence is manifestly excessive. 

The charge alleged the matters mentioned in sections 328A(2)(a) and 328A(3)(b) of the Criminal Code.  Because of the former the maximum penalty was five years and because of the latter the Judge was obliged to impose imprisonment as a penalty.  The indictment also alleged that the concentration of alcohol exceeded 150 milligrams per 100 millilitres of blood, a matter which is made relevant by section 328A(4)(b), but was not appropriately included in indictment; it would have been properly charged only if the offence alleged had been one of causing death or grievous bodily harm.

The applicant had four times been convicted of driving under the influence of alcohol.  Those offences occurred in 1987, 1988, 1991 and 1993.  As to the last he was also convicted of driving without a licence.  In addition, there are in his record a number of lesser driving offences, speeding and the like.  I mentioned that the offence now in question, dangerous driving, was committed in March 1996.  In the following month the applicant committed further offences, being an aggravated assault and drug offences, but one may infer from the penalties imposed that these were not regarded as being particularly heinous.

Undoubtedly the offence in question was a bad example of dangerous driving, but fortunately no one was injured.  Two police constables were performing radar duties on Mt Cotton Road about 9.55 p.m. on 21 March 1996, which was a Thursday, when the applicant approached, driving at a speed recorded at 111 km/h, well in excess of the 80 km/h speed limit in the area.  One constable, wearing a reflective jacket and carrying a torch, went to the middle of the applicant's lane to intercept him.  He indicated to the approaching vehicle, driven by the applicant, to pull over, but it accelerated directly towards where he was standing.  The constable just managed to jump out of the way.  The other constable also tried to wave the vehicle down; it passed close to him and knocked his torch out of his hand.  Then there was a chase; the police car got up to 190 km/h.  At one stage the applicant's vehicle overtook another car at a speed between 160 and 180 km/h, by the police estimate, along a single unbroken centre line.  The chase went on for about three kilometres.  The applicant went through a stop sign, then slammed on the car's brakes to avoid another car, and stopped.  At that stage, the applicant was arrested. 

I have mentioned that the indictment alleged an alcohol concentration in excess of 150 milligrams of alcohol per 100 millilitres of blood; the blood alcohol level was in fact .187.  This circumstance was not appropriately included in the indictment, but it is relevant to the sentence.  This Court has held on a number of occasions that ordinarily a penalty is not to be reduced on account of the fact that the offender was drunk at the time.  The more recent cases in this line are conveniently collected in the Queensland Current Case Citator consolidation for the year ended 30 June 1997.  Of course in this present context it would be odd to urge alcohol ingestion as a mitigating factor as, under this same section, it is treated as a factor doubling the maximum penalty which may be imposed: section 328A(4). 

The applicant was 27 years of age at the time of the offence and his counsel below said, in effect, that he drank alcohol to excess on this occasion because of an emotional upset.  Counsel also urged that the applicant stopped his vehicle when he realised what he had done.

To support the imposition of the five year maximum penalty the Crown does not have to argue, nor does this Court have to hold, that the offence in question was the worst imaginable example.  But there are some factors indicating that the case does not warrant the maximum sentence.  These are that there was a plea of guilty, although a late one; that there seems to be substance in the suggestion that the applicant pulled up when he realised the enormity of what he had done; that the applicant, although he has a bad record of drink driving, has never previously been sent to prison; and that there appears to have been little traffic about during the rather brief period of high speed driving.  The question is whether the present case, although a bad one, is representative of the worst type of case one would expect to be caught by this section: see Veen (No 2) (1988) 164 C.L.R. 465 at 478.  To revert to the factors just mentioned, it would I suppose be common enough that there are cases where the dangerous driving occurs in a place where there is considerable traffic about and where the dangerous driver is stopped only because he runs into some obstacle.

Despite the appalling behaviour of the applicant in driving so as to endanger the police officers, there is reason to doubt whether this could realistically be said to be the worst type of case, so as to merit the maximum sentence of five years, which was that imposed.  Then if one examines the cases, doubts as to whether the sentence was at an appropriate level increase.  As was pointed out in this Court in Sheppard, (C.A. No. 391 of 1994, judgment delivered 8 February 1995), at that stage the range of sentence ordinarily imposed for death and grievous bodily harm cases attracting the highest penalty under this same section, namely 14 years, was only four to five years.  In that case members of the Court expressed disapproval of the notion that this was an appropriate maximum range. 

It was said in Ryan (C.A. No. 367 of 1996, judgment delivered 8 November 1996) that in Vessey (C.A. No. 453 of 1995, judgment delivered 16 February 1996) the increase which was, so to speak, foreshadowed in Sheppard came to pass and a sentence of six years six months was increased to nine years on an Attorney's appeal.  However, it had to be admitted that Vessey remains a rather isolated example of a heavy sentence for dangerous driving.  In the present case the Court was referred to at least two matters in which the circumstances were similar in that the offender drove at police.  That is the worst feature of the present case.  Those two previous similar cases are Broadbridge (C.A. No. 195 of 1994, judgment delivered 5 August 1994), and Vogt (C.A. No. 67 of 1995, judgment delivered 28 April 1995).  Broadbridge is particularly significant because there the penalty was fixed by this Court which allowed an application for leave to appeal against sentence.  There as here, the applicant drove at a police officer who had to jump out of the way; he was forced to stop by another police vehicle.  There was no alcohol involved and the applicant was only 18 when the offences were committed.  There was some criminal history and as here the maximum penalty was initially imposed, that was three years, and the Court reduced the penalty to 18 months with a recommendation for parole after six months.  Mr Bullock, for the Crown, especially relied upon Vogt; it is necessary to say something about that case.  An application for leave to appeal was refused, a five year term having been imposed for dangerous driving; there were also other offences.  The applicant was apprehended in the course of stealing a motor vehicle in Burnett Lane one night.  The police positioned vehicles to stop the stolen vehicle which was being reversed down Burnett Lane at speed; it stopped short of the police vehicles and then reversed into one of them, damaging it, and drove off in an erratic fashion.  The stolen vehicle was driven at one police officer and others were forced to take evasive action.  There was further dangerous driving in the city including going through red lights and the whole incident ended in a crash.  There was a blood alcohol content of .126 and a substantial criminal history.  Mr Justice Moynihan described the case as one in which a criminal was apprehended in the course of a criminal act and embarked on a course of dangerous driving to escape apprehension which involved deliberately driving at police officers in an attempt to escape.  A five year sentence was upheld.  The applicant had a much more substantial criminal history than the present applicant.  The five year sentence there was, as here, the maximum, but as Mr Justice Moynihan pointed out it reflected the total criminality of the whole course of conduct including unlawful use of a motor vehicle and damaging the police vehicle.  With some measure of doubt expressed in my own reasons, with which reasons Mr Justice Ambrose agreed, the sentence was upheld. 

We have also been referred to Price (C.A. No. 117 of 1992, judgment delivered 2 June 1992) and to McDonald (C.A. No. 279 of 1994, judgment delivered 12 September 1994).  It appears to me unnecessary to discuss those cases in detail, but it is important to note that in each of them the sentence was actually imposed by this Court and the trend and the level of those sentences is such, in my view, as to support the applicant's argument here.

In the present case, if the applicant is released on parole after two years (which of course may not occur) then that does not on the face of it seem a remarkable prison term for an offence of this seriousness.  But the Crown has to defend the award of a maximum sentence which is reserved by the statute, as the High Court has said, for the worst category of cases.  Where one has an applicant who has never before so offended as to merit prison, there is a plea of guilty to be considered, as well as the relatively deserted state of the roads at the time and the apparently voluntary stopping of the vehicle at the end, I have been unable to conclude that the case warranted the imposition of a head sentence of the maximum term.  Taking into account all these matters including the plea of guilty, I would set aside the sentence imposed below and reduce the head sentence to three years, with no recommendation for early parole. 

It is desirable to add something about the disqualification imposed below, which is not attacked.  The applicant has persistently committed drink driving offences and will be an obvious danger to other citizens if he continues to do so in the future.  Any statutory discretion which may, in the future, be exercised by way of removal of this disqualification will not I hope ignore public safety.

I would, as I say, allow the application and substitute for the sentence imposed a sentence of three years with no recommendation for early parole.

McPHERSON JA:  I agree.

BYRNE J:  I agree.

McPHERSON JA:  The order will be as Mr Justice Pincus stated it.