Attorney-General v Hoffman[1997] QCA 377

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 266 of 1997

Brisbane

[R v. Hoffman; ex parte A-G]

THE QUEEN

v.

LORENA ANNE HOFFMAN

Respondent

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Pincus JA

Shepherdson J

White J

Judgment delivered 24 October 1997

Separate reasons for judgment of each member of the Court, Shepherdson J dissenting.

APPEAL AGAINST SENTENCE DISMISSED

CATCHWORDS: CRIMINAL LAW - Sentence - Attorney-General’s appeal against sentence for dangerous driving causing grievous bodily harm whilst adversely affected by alcohol - sentence very lenient - no previous convictions - respondent 18 years at time of accident - disparity in age with complainant - inference that he exerted influence over her - complainant initiated and maintained conduct leading to the accident - respondent occupied with the complainant’s rehabilitation.

Counsel:  Mrs L Clare for the appellant

Mr G O'Driscoll for the respondent

Solicitors: Director of Public Prosecutions (Queensland) for the appellant

Patrick Murphy as town agent for Winning and Sorenson, Rockhampton, for the respondent

Hearing Date: 6 August 1997

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 24 October 1997

I have read the reasons of White J.  The principal difficulties in upholding the sentence imposed below, consisting of an intensive correction order and a fine, are three:  the respondent’s substantial ingestion of alcohol, her very dangerous driving, and the disastrous consequences which ensued for Mr Franklin, the person injured by it.  The principal mitigating factors are that the respondent had no previous convictions, was only 18 at the time of the offence, had cared for the victim for about a year while living with him and lastly, was urged by Franklin to engage in the dangerous game which caused the injury.

The primary judge expressed the view that it was illogical to impose a more severe punishment, the more severe the injury caused.  But there is no doubt, on the authorities and by the very terms of the Penalties and Sentences Act 1992 that the harm done to the victim must be taken into account by the sentencing judge: s. 9(2)(c), (e).  Of course this is consistent with the structure of the Criminal Code provisions relating to dangerous driving;  whether such driving happens to cause no injury or serious injury or death may be a matter of chance;  but the penalties imposed differ substantially, depending on the result:  s. 328A(1), (4).  The Criminal Offence Victims Act 1995, in requiring that the sentencing court be given details of the harm caused, is consistent with these concepts:  see s. 14 of that Act. 

It seems to me clear that the respondent has been treated leniently.  I agree with the observations of White J concerning the importance of consistency in sentencing.  But consistency cannot be achieved by laying down that ordinarily the sentence for a particular offence shall be a certain number of years:  cf. Joyce [1986] 1 Qd.R. 47.  As the present case illustrates, circumstances are too variable to make such suggestions particularly useful:  the offender may have a very bad criminal record, or none;  may be early in adulthood, or much older;  may (in a case of this sort) be deliberately driving so as to endanger others or, as in this case, driving with an apparent lack of consciousness of the risk which was being run.  Proper sentences, in cases of the present kind, may vary from the maximum prescribed by the statute to a non-custodial sentence.

In the end, the principal factors which have weighed with me have been the respondent’s youth and the fact that, in the primary judge’s opinion, interrupting the respondent’s care of Franklin could have adverse effects upon his rehabilitation.  Of course, a sceptical view of the motive for the respondent having helped Franklin was open, but was not taken below and should not be adopted now.  In the quite unusual circumstances, it does not appear to me that it would be a proper exercise of this Court’s discretion to sentence the respondent in such a way as to require that she go to prison.

Since writing the above I have been provided with the proposed reasons of Shepherdson J.  As to s. 9(4) of the Penalties and Sentences Act 1992 (in the form it had before an amendment operative on 1 July 1997), I am respectfully inclined to agree that the learned sentencing judge erred in acting on the view that "a sentence of imprisonment" in s. 9(4) does not include such an order as his Honour made.  But the error, if error it is, could not be a basis for setting aside the sentence imposed below at the instance of the Attorney;  if the primary judge had concluded that no sentence of imprisonment whatever was justified, whether or not one involving actual incarceration, he presumably would have imposed a lesser penalty, not a greater one.

I agree with White J that the appeal should be dismissed.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 24 October 1997

I have read the reasons for judgment in draft prepared by each of White J and Pincus JA.

As I disagree with them as to the outcome of this appeal I shall state my reasons.  But first I am grateful to accept the facts surrounding the commission of the offence and other matters as set out by White J.

In R v. Melano ex parte Attorney-General (1995) 2 Qd.R 186, this Court held that ordinarily  it should not allow an appeal under s. 669A(1) of the Criminal Code unless the sentence imposed was outside the scope of a proper sentencing discretion and that consistently with established principles relating to the determination of appeals against exercises of discretion, ordinarily an appeal under 669A(1) should not be allowed unless the sentencing judge had erred in principle, either because an error was discernible or demonstrated by a manifest inadequacy or excessiveness. 

The respondent, who was 18 years old at the time of the offence, had pleaded guilty to a charge  that on the 16th day July 1996 at Moranbah, she drove a motor vehicle namely a Toyota Land Cruiser Utility upon the Goonyella Road, Moranbah, dangerously and thereby caused grievous bodily harm to Garry Alistan Franklin and that at the time she was adversely affected to an intoxicating substance namely alcohol.

The offence probably occurred about 1 a.m.  Although the respondent was seated behind the steering-wheel and driving the Toyota Land Cruiser the facts show that Franklin was also “driving” the vehicle.  I say that because the respondent was in effect driving with  her eyes closed and Franklin, who had his hands over her eyes, replaced her eyes with his and while she was driving “blind” gave her instructions as to the directions in which to steer the vehicle.

The respondent was adversely affected by alcohol - as she admitted in her plea of guilty.  She was not licensed to drive this Toyota Land Cruiser which was manual drive - she was licensed only to drive such a vehicle with automatic transmission.  That aspect of the matter has no bearing on penalty for the offence to which she pleaded guilty.   Franklin was severely injured in the incident and concern for him and his welfare has in my respectful view led the learning sentencing judge into error.  I might add that Franklin is fortunate not to have been charged with driving dangerously on 16 July 1996. 

The respondent’s driving at the relevant time was, to say the least, appalling and very dangerous.  She had abdicated to Franklin her duty to keep a proper lookout as she steered the vehicle during its movement forward at a fast speed.  The learned sentencing judge did not make a finding as to the approximate speed but the material before him showed that when interviewed by the police on 19 July 1996 the respondent said that at the relevant time the vehicle was travelling between 100 and 120 kph.  In a handwritten document  apparently prepared at about the time of the plea there was a statement that the speed could not have been over 100 kph.  The Crown Prosecutor placed before the learned sentencing judge a document emanating from the Director of Public Prosecutions Office described as “Dangerous driving causing death and/or GBH, under the influence of alcohol” schedule. In this schedule 12 cases are cited with potted details of each being given - all are Court of Appeal decisions going back to 1991.  In 10 of the cases sentences of imprisonment were imposed, the range of those sentences being from 2 years to 9 years.  In the 11th case - Michael Desmond Ryan CA 367/96 - an Attorney-General’s Appeal - a 3 years suspended sentence was imposed, the offender was fined $12,500 and ordered to perform 240 hours unpaid community service.  In the twelfth case - Shedlock (CA 60/96 - an appeal by the Attorney-General) the sentence from which the appeal was brought was 1 years imprisonment to be served by way of an intensive correction order including receiving counselling and advice to overcome his problems with anger and alcohol.  Compensation of $13,639 was to be paid and Shedlock was fined $4,000 to be paid within 2 years.  An appeal was allowed; the fine was increased to $10,000 to be paid within 3 years from the date of sentence and Shedlock was disqualified from driving for 5 years.  The sentence of imprisonment remained.  However, the following comments are noteworthy.

Fitzgerald P commented “in the circumstances I would not now send him to gaol if some reasonable alternative can be found”.

Byrne J said:-

“In my opinion a head sentence of not less than 2½ year imprisonment should have been imposed coupled with a disqualification from holding or obtaining a drivers license for 5 years.”

However, His Honour did not make such an order because the respondent had been returned to the community.  Williams J in dissent said that he would have increased the sentence to 2½ years  with a recommendation of eligibility for parole after 8 months and disqualification from driving for 5 years.  Thus the schedule pointed to the need for a term of imprisonment for the respondent who was exposed to a possible maximum sentence of 10 years imprisonment.

The learned sentencing judge correctly recognised that for the offence to which she had pleaded guilty a sentence of imprisonment was required.  He said:-

“The issue today is, of course, whether you must serve time actually imprisoned.  I do not think there is any issue but that a term of imprisonment has to be pronounced.”

His Honour went on to say:-

“The special circumstances in your case are your youth, your clean record and I would say the way you have acknowledged your responsibility for the offence and also the importance of your continuing to be with Garry Franklin in the interests of his comfort and rehabilitation.  Effectively he is your husband.”

The learned sentencing judge also had to contend with s. 9(4) of the Penalties and Sentences Act 1992 as it then stood.  It read:-

“9(4) The court may impose a sentence of imprisonment on an offender who is under the age of 25 years and has not previously been convicted only if the court, having -

(a)considered all other available sentences; and

(b)take into account the desirability of not imprisoning a first offender;

is satisfied that no other sentence is appropriate in all circumstances of the case.”

What the learned sentencing judge said was:-

“I have decided I am not satisfied of the matters which s. 9(4) requires me to be satisfied  of before actual incarceration may be ordered.  The order that I make is that a conviction be recorded and that you be sentenced to 12 months imprisonment to be served by way of an intensive correction order.”

In that passage His Honour eschewed s. 9(4) and yet went on to sentence the respondent to 12 months imprisonment.

In imposing that sentence His Honour was obviously acting under s. 112 of The Penalties & Sentences Act 1992 which read:-

“112.  If a court sentences an offender to a term of imprisonment of 1 year or less, the court may make an intensive correction order for the offender.”

I note sub-s. 113(1) of the same Act which reads:-

“113(1) The effect of the order is that the offender is to serve the sentence of imprisonment by way of intensive correction in the community and not in a prison.”

Sections 112 and 113 appear in “Part 6 - INTENSIVE CORRECTION ORDERS”.

In my respectful view the learned sentencing judge erred in his interpretation of sub-s. 9(4) when he interpreted the phrase “a sentence of imprisonment” as meaning “actual incarceration”.  I respectfully disagree with such an interpretation.  The phrase may mean “actual incarceration” but this is not its only meaning in sub-s. 9(4).   Sub-s. 9(4) as it then stood contained the phrase “a sentence of imprisonment” and s. 112 uses the phrase “sentences an offender to a term of imprisonment”.  In my respectful view a sentence imposed under s. 112 is a sentence of imprisonment within s. 9(4) although it does not require “actual incarceration”.  The learned sentencing judge, if he intended to impose a sentence pursuant to s. 112 should have been first satisfied that no other sentence was appropriate in all circumstances of the respondent’s case.  In my respectful view His Honour erred in failing to be so satisfied before sentencing the respondent to 12 months imprisonment.

In light of that error it falls to this Court to exercise afresh the sentencing discretion.

If I should be wrong in my view that the learned sentencing judge did err as I have demonstrated, nevertheless, even though no error be demonstrated the sentence imposed was such  that in my view it was manifestly inadequate and this Court should interfere by increasing it.

I recognise that the respondent has presented as the victim’s solace and support - to use the learned sentencing judge’s words - since the incident of 16 July 1996.  In my view a term of imprisonment was called for - the deterrent effect must come to the fore.  If while the respondent is in custody, Franklin has to make arrangements for a person or persons to care for his needs then that is an expense which he will have to bear.  He is no doubt grievously disabled because of the respondent’s conduct.  The offence was a very serious one and in my respectful view the learned sentencing judge failed to give sufficient weight to the aspect of deterrence and gave too much weight to the respondent’s past care and her future care of Franklin.  His Honour said that he was proceeding on the basis that her relationship and the care it provides for Franklin will continue, he having been assured by the respondent’s counsel that the relationship will continue without interruption. Motor vehicles are in very common use in our society - it is not going too far to say that mankind, particularly in the better developed countries has chosen to live with the motor car.  Motor vehicles driven without proper care and attention can be and have been instruments of a tremendous amount of harm and destruction within our communities.  In my view the courts must be seen, in appropriate cases, to penalise suitably persons who commit offences of dangerous driving causing grievous bodily harm particularly with a circumstance of aggravation namely being adversely affected by the consumption of alcoholic liquor.  I would allow the appeal and set aside the orders made below.  In lieu I would sentence the respondent to 2 years imprisonment  and recommend that she be eligible for parole after having served 6 months of the sentence.  I would order that a warrant issue for her arrest.  The early recommendation for parole is in recognition of her timely plea of guilty and her candid and frank disclosure to the investigating police of the events leading to the incident without which successful prosecution often may well have been difficult.  I would adopt the learned sentencing judge’s approach to disqualification and order that she be disqualified from holding a driving licence for 2½ years from 5 June 1997.              

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 24 October 1997

The Attorney-General has appealed against the sentence which was imposed on the respondent in the District Court held at Clermont on 5 June 1997 after she had pleaded guilty to dangerous driving causing grievous bodily harm whilst adversely affected by alcohol.

The learned sentencing judge imposed a sentence of 12 months' imprisonment to be served as an intensive correction order pursuant to s. 112 of the Penalties & Sentences Act 1992 and a fine of $3,500 with three years to pay with 4 months' imprisonment in default together with disqualification from holding a driver's licence for 2½ years.  The respondent is aged 19 years.  She was 18 at the time of the offence which occurred on 16 July 1996.  She was then living in a de facto relationship of some 6 months' duration with the complainant Garry Franklin and continues to do so.  He was then aged 31 years.  He was seriously injured in the incident.

The conduct engaged in by the couple leading to Franklin's injury is quite astonishing in its stupidity.  The respondent had a learner's permit in respect of an automatic vehicle which did not permit her to consume any alcohol and drive.  The vehicle which belonged to Franklin's brother was a manual 4 wheel drive.  Franklin was not then in possession of a driver's licence although that did not appear to have inhibited him from driving on other occasions.

The events leading up to and following the accident come from the respondent's accounts in her record of interview with the police on 19 July 1996 and a statement written by her and tendered by her counsel in the course of submissions on sentence.  It is undated but it can fairly be inferred from reference to events close to the date of sentence that it was prepared immediately prior to sentence.  It differs in a number of respects from the information in the record of interview, but not materially.  The facts in these reasons are taken from the Prosecutor's submissions which were no doubt taken from the record of interview and which were not challenged by defence counsel.

On the day in question Franklin had been drinking in the late afternoon and collected the respondent at about 7.30pm to take her to a barbecue in Moranbah.  In the course of the evening she consumed 6 Jack Daniels, 2 Jim Beam and a XXXX Gold.  She told the police that the complainant mixed most of her drinks and when he did he would make them a little stronger than usual.  In her statement the applicant has said that she had consumed fewer drinks.  In the event it makes little difference.  They returned to the respondent's parents' house around midnight although there is no certainty as to times and the respondent asked him if he wished to stay there or return to Peak Downs where he worked.  Franklin asked her if she was able to drive and she told him that she was so they decided to return to Peak Downs as he had an early work start in the morning.

Shortly after they left the town Franklin placed his hands over the respondent's eyes whilst she was driving.  She screamed and asked him what he was doing to which he replied that he was "just mucking around" and asked if she wanted to play a game which they had seen recently in a movie "Mad Love".  She agreed to the game which involved Franklin placing his hands over her eyes and giving her directions as to where to steer.  He apparently removed his hands when corners were imminent.  The respondent estimated that Franklin put his hands over her eyes about five or six times before the accident occurred.  There would appear to have been little or no traffic on the highway and the respondent told the police that she was quite familiar with the road travelling along it up to three times per week.  She also told the police that she was not tired and that at no time had Franklin sought to interfere with the controls of the vehicle with which she was familiar.

On the last occasion that Franklin had his hands over the respondent's eyes she estimated that it was for a period of about 5-7 seconds during which he told her to turn more to the right.  She asked him to take his hands away from her eyes and when he did so she attempted to adjust the direction of the vehicle which she saw was heading for a guide post.  At that stage she believed that the car was not travelling in excess of 100km per hour.  The respondent said that she had driven the vehicle throughout the journey from Moranbah at between 80 and 120km per hour.  The respondent was unable to avoid the guide post which the vehicle hit.  It swerved across the road, went out of control and rolled over a number of times.

Franklin was thrown from the car and it was not until passers-by came upon debris over the road at about 1.10am and found him lying unconscious in the middle of the highway that any assistance was rendered.  The respondent was trapped by her hair half out of the motor vehicle off to the side of the road but was not seriously injured.  It is probably fair to assume that Franklin was not wearing a seat belt when thrown from the vehicle.

Franklin was taken to Moranbah Hospital, deeply unconscious with a serious closed head injury.  He was then transported to the Townsville Base Hospital where he remained in intensive care and in a coma for eight days.  He was subsequently transferred to the rehabilitation unit where he remained until September 1996.  He was discharged home to Mackay where he remained with his mother for some two months.  The respondent stayed for a period with him but relations were poor between the two women and she returned home to her own parents.  Franklin obtained accommodation for them both in Mackay and the respondent rejoined him.  She has continued to care for him and be part of his rehabilitation program since that time.  It is Franklin's wish, conveyed through the respondent's counsel to the court below, that the respondent not go to prison.

The effect of Franklin's injuries has been serious.  He had sustained a head injury in a motor vehicle accident some twelve years previously which had left him with a slightly impaired memory and slower processing skills.  Prior to the present incident he had worked at the Peak Downs mine as a vehicle maintenance worker.  Dr Sadleir who examined him noted that he was independently mobile but continued to have higher balance and coordination problems which did not affect his daily functioning.  He also suffered from impaired language skills and deficits in memory retention.  A CT scan indicated a significant post-traumatic change to the left temporal lobe and the left parietal occipital region of the brain.  Dr Sadleir concluded that Franklin's brain injury fulfilled the criteria for grievous bodily harm because the injury was life-threatening and left him with permanent brain damage and cognitive deficits.  The therapists concerned in his rehabilitation considered it unlikely that he would be able to return to his previous employment but thought that in due course he would be able to obtain an occupation.  He was regarded as working well at his rehabilitation by Dr Sadlier.

Without the cooperation and honesty of the respondent the police may have had some difficulty in sustaining the charge brought against her.  Franklin had no memory of the accident and there were no witnesses.  The question one of the rescuers asked of the respondent about hitting a cow would have been an easy excuse to adopt, although there would have been no avoiding the consumption of alcohol as both she and Franklin smelt of it. The respondent was tested at about 3.20am for blood alcohol and returned a concentration of .127%.  The medical evidence suggested that some two hours earlier it may have been between .150% and .190%.

The submissions before the learned sentencing judge were extensive and his Honour was referred to and discussed with counsel a number of comparable authorities.  In the light of them he considered that he was entitled to impose the sentence which he did.  He referred to factors favourable to the respondent, namely, her youth and the effect of s. 9(4) of the Penalties & Sentences Act since she had no previous convictions, her guilty plea following a full hand up committal and that she had made full and frank admissions.  However it seems that the major influence on his Honour's decision to impose the sentence which he did was an acceptance of the submission made on her behalf that she was integral to Franklin's rehabilitation.  There was no evidence placed before the court that there was no one else who could care for him should the respondent be required to serve some period of her sentence in prison and the evidence contained in the respondent's own statement suggested that there was some competition between the respondent and Franklin's mother to look after him.    Nonetheless the respondent, whose statement was not challenged, had given up her employment to care for him and to work with him towards as good a rehabilitation as was possible.  Dr Graham Rowles whose report was tendered, although no particular reference was made to it in the sentencing remarks, observed that the respondent had been "actively involved in his rehabilitation and care and their relationship has developed because of this.  She cares for him and supervises his medication - without which he has Grand Mal seizures".

The Attorney points to three errors which contributed to what he submits is the manifestly inadequate sentence namely,

• insufficient or no weight given to the gravity of Franklin's grievous injury;
• the view that a manifestly inadequate sentence can safely be imposed because an appellate court would be unlikely to disturb that sentence on an Attorney-General's appeal; and
• where a victim has been a joint participant in the offence the need for punishment is reduced.

With respect to the first issue his Honour observed at R.28 that the serious consequences to Franklin as he understood sentencing patterns for this kind of offence called for more serious punishment.  His Honour observed that he was doubtful that once grievous bodily harm was suffered that it was logical to "mindlessly" impose a more severe punishment the more severe the injury was although he added that there may obviously be circumstances where it was correct to do so.  Whilst accepting that an ad infinitum expansion of punishment will not necessarily be warranted and that sentencing concerns balancing a wide range of factors that observation is inconsistent with the Code provisions relating to dangerous driving and contrary to comments made in Shedlock CA No 60 of 1996 where the President said at p. 1 in respect of dangerous driving causing grievous bodily harm that

"This is an area of the law in which unintended consequences play a part in the sentencing process ..."

In Sheppard (1995) 77 A Crim R 139 Pincus JA noted at p. 141

"In cases of this sort [dangerous driving causing death and grievous bodily harm] it is sometimes pointed out that many instances of very bad driving cause little damage, and those which result in death or serious injury may do so fortuitously.  Nevertheless, it is clear that the causing of death or grievous bodily harm is an important aggravating factor."

His Honour went on to observe that the extent of the injury done in grievous bodily harm cases was one of the factors which would affect the sentence imposed. 

Turning to the second point, the Attorney submits that the remarks of the learned sentencing judge in the course of discussion with counsel indicated some reliance on the exceptional nature of Attorney's appeals and the disinclination of an appellate tribunal to imprison respondents who have been released into the community at first instance.  I do not think that an entirely fair summary of the approach taken by the learned sentencing judge.  In his sentencing remarks he approached the matter in an orthodox way distinguishing some relevant authorities and applying others but the authorities to which he particularly made reference, Shedlock CA No 60 of 1996 and Ryan CA No 367 of 1996, both on the Crown's schedule, could not be regarded as a reliable guide to the appropriate range of sentence.  The sentences in both cases were described as manifestly inadequate on appeal and but for special circumstances the appeals by the Attorney may well have been allowed.  The learned sentencing judge did concede that there were some special features about Ryan which resulted in the Attorney's appeal being dismissed.

The third matter relied upon by the Attorney is the inappropriate weight placed by the learned sentencing judge on Franklin's role in the offence.  The facts speak for themselves and there is no doubt that he was much older than the respondent, had instigated the conduct which led to his injuries and was aware of the quantity of alcohol which she had consumed.  On the other hand the respondent was already engaged in significant unlawful driving conduct and was a willing participant.

The Attorney has pointed to the incongruity of sentencing the respondent to a term of imprisonment to be served by an intensive correction order which may require up to 12 hours per week of community service together with the possibility of confinement in an institution when an important reason for not requiring her to serve a term of imprisonment actually in a prison was her need to care for Franklin.  The working out of such an order is at the discretion of the relevant officer who would take into account the personal circumstances of the respondent when deciding how the intensive correction order was to be implemented.

When deciding on the appropriate penalty for an offence, as was pointed out by the court in Sheppard, the maximum penalty as prescribed by parliament for that offence must be kept in mind.  The maximum penalty for this offence is one of 10 years.  Had the percentage of blood alcohol been over .150% that would have been a further aggravating circumstance for which the maximum penalty is 14 years' imprisonment.  Sentences which were imposed prior to the increase in the maximum penalty in 1989 can no longer be regarded as a suitable guide, Sheppard.

The learned sentencing judge referred to the difficulty of sentencing where there were features such as the respondent's care for the complainant together with the complainant's wishes in the matter.  In numerous cases of dangerous driving causing harm with or without alcohol injured passengers will often be closely linked to the driver.  In many cases the injured person or his or her family will not wish to add further to the distress of the wider family or group by the imposition of a custodial sentence.  The observations of Dowsett J in Sheppard are of assistance.  His Honour said at p. 147

"In our society, we insist that those who sit in judgment be persons who have no interest in the outcome.  This is because we have long recognised that those who are interested are unlikely to be objective.  It would be obviously inappropriate for the family of a victim or the family of an offender to determine the appropriate punishment.  Each group is simply too closely involved to be objective.  That is not to say that the court does not take account of the feelings of the victim and his or her family in the sentencing process, but recognition of those feelings is only part of a complex process.  The court must try to reflect the views of society generally, in light of all the circumstances of the case."

Also apposite are the observations of Pincus JA in King CA No 516 of 1995 at p. 6, with whom the other members of the court agreed, where submissions were made that the offender had the care of some of her children

"As to that, it must commonly happen that an offence by a single parent, male or female, who has responsibilities for children, creates a situation in which as in this case, a term of incarceration is likely to create difficulties for others in caring for the children.  That cannot, in my view, in itself warrant the Court in refraining from imposing a term of imprisonment which would otherwise be in order."

The Attorney has submitted that a consideration of the relevant authorities would dictate that a custodial sentence some part of which was to be actually served in prison should have been imposed.  In all sentencing and in this area perhaps more than any other the facts and circumstances of each offence will vary so greatly as to make comparisons between cases quite difficult, Smith CA No 80 of 1989.  But difficult as consistency in sentencing is it is of great importance if there is to be a fair administration of the law.  As Pincus JA has observed in Horton CA No 217 of 1997,

"It is this Court which has, under Queensland law, the primary responsibility for determining (subject to statutory maxima) whether challenged sentences are at a proper level and it is the responsibility of all the state's magistrates and judges to respect that position."

It is relevant to consider some comparable fact situations as a general guide to the appropriate level of sentence and to ascertain if the learned sentencing judge fell into error on that ground, R v. Melano (1995) 2 Qd R 186.

In Quinlan CA No 297 of 1994 the applicant sought leave to appeal against a sentence of 3 years imprisonment with a recommendation for parole after serving 6 months for dangerous driving causing grievous bodily harm while adversely affected by liquor.  The applicant was just over 18 at the time of committing the offences and had no previous criminal history.  She had consumed a large quantity of alcohol and engaged in particularly reckless driving.  There were two adult passengers and the applicant's small child in the car at the time.  The child was enclosed in the same seat belt as one of the adult passengers.  She drove the vehicle at 120km per hour in a built-up area in Mt Isa and during part of this driving one of the passengers in the front seat was hanging out of the window engaging in "road surfing".  The applicant attempted to enter an 's' bend at 120km per hour a feat which she had apparently managed previously and was attempting to replicate when she lost control of the vehicle, which hit an obstruction and then overturned.  One of the adult passengers sustained a fractured pelvis which was likely to leave a degree of permanent disability.  The applicant subsequently attended at the local hospital and submitted to a blood test which revealed an alcohol level of .064% which indicated a likely blood alcohol content of .104% at the time of the accident.  She held a learner's permit and was driving a severely defective vehicle.  She pleaded guilty on ex officio indictment.  Davies JA observed that the sentence was "quite a severe one" having regard to her age, her previous good record, the plea of guilty and her cooperation with the police.  His Honour also added the fact that the substance of the case against her was provided by her.  The court held however that by providing for parole after serving 6 months the sentence imposed did not go outside the range for the exercise of a sound sentencing discretion and it was a case of very bad reckless driving by a person who must have been very drunk at the time.

King was an Attorney's appeal against a sentence of imprisonment to be served by way of an intensive correction order and a disqualification from holding a driver's licence for five years. for an offence of dangerous driving causing grievous bodily harm with a circumstance of aggravation due to the consumption of alcohol exceeding .150%.  The respondent was 28 at the time of the offence.  She was driving the car in the early hours of the morning when it left the road and collided with a tree.  At the time she was very drunk being about .280%, well in excess of the minimum charged on the indictment.  As a result of the collision the passenger was seriously injured involving multiple fractures of the ribs, scapular and pelvis as well as a large pneumo thorax.  Although very badly injured it would appear that he was left without serious disability.  The respondent was an unlicensed driver.  Pincus JA was of the view that there was such a discrepancy between the maximum penalty of 14 years and that which was imposed that it could only stand if there were "very special mitigating circumstances".  The respondent told the police some days later that she had driven on that road at night once before, that she was driving at about 100km per hour and that at the time of the accident she had one hand on the steering wheel and the other was attempting to locate a cassette tape.  She was also suffering from some temporary difficulty with the vision in one eye.  Before setting out on this journey she had been warned that because of her drunken condition she ought not to drive.  The plea of guilty was entered while the trial was under way.  His Honour observed that in such circumstances a substantial custodial sentence would be expected.  The respondent was said to have had an appallingly deprived personal history and four children by different fathers.  She had a minor criminal history for unlicensed driving.

Pincus JA considered that there were no remarkable circumstances to justify the course taken by the primary judge and even making allowances for her remorse, her relatively good previous record, unfortunate upbringing and family responsibilities a sentence of less than 3 years was not appropriate.  She was recommended for release on parole after serving 12 months.

The court referred to Conquest CA No 395 of 1995 an Attorney’s appeal which concerned an 18 year old unlicensed driver who was on probation at the time of the offences.  He was said to have been "skylarking" when driving a car without the owner's consent which swerved across to its incorrect side of the road and collided with three members of a group of pedestrians one of whom was killed and the others severely injured.  He had a relatively serious criminal history.  The primary judge imposed a sentence of two years imprisonment.  The court allowed the appeal and imposed a sentence of 3 years' imprisonment (the Chief Justice dissenting).  In Vessey CA No 453 of 1995 another Attorney's appeal the respondent had at first instance been sentenced to 6½ years’ imprisonment for dangerous driving causing death with the recommendation that he be considered for parole after 26 months.  He drove through a give way sign bringing about a collision and death and was not licensed to drive.  He had a bad history of driving under the influence of liquor until absolute disqualification.  The court increased the sentence from 6½ years to 9 years with a recommendation for parole after 4 years.  Both Conquest and Vessey are of little assistance as comparable sentences here, both being significantly more serious examples both of wrong doing, effect on the victim and bad histories.

Shedlock was an Attorney's appeal which was partially successful.  The offender had a bad traffic history over a 10 year period and had committed other serious offences whilst on bail for the offence of dangerous driving causing grievous bodily harm with a blood alcohol reading of .165%.  He had driven the motor vehicle around inner city streets at around 5.00am in a highly erratic and dangerous manner.  It passed through red lights and finally collided with a vehicle driven by the complainant who suffered a serious permanent injury to his hand.  He was sentenced to a term of imprisonment for 1 year to be served by way of an intensive correction order and ordered to pay compensation in the sum of $13,639 together with a fine of $4,000.  All three members of the court regarded the sentence as manifestly inadequate but in the case of the President and Byrne J, because the respondent had paid a significant amount of compensation and had more to pay, had been released into the community and was working hard at a good job they considered that a custodial order was no longer appropriate.  Williams J dissented, and would have imposed an order that he serve a term of imprisonment of 2½ years.

The applicant in Wurzbacher CA No 264 of 1996 was convicted on his own plea of dangerous driving causing grievous bodily harm whilst having a blood alcohol concentration equal to or exceeding .150% and was sentenced to imprisonment for 4 years with a recommendation that he be eligible for release on parole after serving 12 months of that sentence and was disqualified from driving for 3 years.  The applicant was aged 24 and had no relevant criminal history.  A long period of almost 3 years had elapsed between the time of the offence and the sentence not due in any way to conduct of the applicant.  The circumstances were very serious.  The applicant and his step-brother who was aged 16 attended a festival where the applicant had consumed a quantity of beer.  The brothers decided to return home at the end of the day and initially the younger brother rode the motor cycle whilst the applicant was a pillion passenger.  After a brief stop the applicant decided to drive although his brother remonstrated with him on the grounds of his intoxication.  The bike was driven at very high speeds up to 130km per hour and was weaving over the road.  Despite requests from his step-brother the applicant declined to pull over and in due course whilst attempting to pass another vehicle was struck by a vehicle travelling in the opposite direction.  The passenger suffered no permanent injury or disability and at the time of the appeal was in full time employment.  The applicant was severely injured and as a consequence of his injury had one of his legs amputated.  The court formed a very favourable impression of the applicant both from his own appearance before the court and from the references which were tendered on his behalf which indicated that he had worked after discharge from hospital, initially in a voluntary capacity at a hostel as a gardener and then in a paid position.  The majority held that a sentence of 4 years was too heavy and in lieu ordered that he be imprisoned for 2½ years with a recommendation after 8 months and a disqualification from obtaining a driver's licence for 3 years.  Fryberg J was a strong dissentient.

Ryan was an Attorney-General's appeal against a sentence of 3 years' imprisonment suspended forthwith together with a substantial fine, the maximum amount of community service and a 3 years disqualification for dangerous driving causing grievous bodily harm with a blood alcohol reading exceeding .150%.  At the time of the appeal the fine had been partly paid and the community service substantially completed.  A taxi reversing out of a driveway was struck by a car driven at excessive speed by the respondent.  The taxi driver suffered severe injury including a fractured femur and a ruptured liver.  The respondent was a young man with some three speeding offences.  The place where the accident occurred involved a crest of a hill so that anyone driving over it at speed was exposing himself and others to a dangerous situation.  The court was particularly influenced by the fact that there was a long delay between the time when the offence was committed and the hearing of the appeal.  The court considered that a custodial sentence some part of which was to be actually served was called for and that the primary judge fell into error in determining that the circumstances did not call for such a sentence.  Because of the delay the court declined to interfere.  These cases demonstrate that the circumstances of drink driving offences vary greatly and that caution needs to be exercised in laying down general directions as to the proper range.  The real difficulty seems to be in deciding whether to impose a term of imprisonment with some part actually to be served or whether some other sentence is appropriate.  There can be no doubt that driving offences involving alcohol and personal injury are prevalent.  There may be a tendency not to characterise such conduct as truly criminal in the general driving community and the deterrent aspect of the sentence is thus important.

I am of the view that the sentence imposed below was very lenient and that the learned sentencing judge was too swayed by the complainant’s complicity in the reckless driving and laid too much emphasis upon the assistance which the respondent was giving the complainant in his rehabilitation.  The breaches of the law in driving when clearly impaired by the excessive consumption of alcohol together with the extraordinary conduct of driving whilst blindfolded by her companion at speeds at around 100 km per hour even though on a country highway at night and the consequential serious injury to the complainant made this serious driving misconduct.  Comparable cases to which I have referred would suggest that a period of imprisonment actually to have been served would have been within the range of a sound sentencing discretion.  However, there are features of this case which are special to it, including

• the considerable disparity in ages between the complainant and the respondent which would lead to a fair inference that he exerted influence over her, despite her honest acknowledgment of willing participation;
• she was only 18 years to his 31 years;
• the foolhardy conduct was initiated and maintained by the complainant and he has not been charged;
• she had no previous convictions;
• there was little or no traffic on the highway; and
• her full-time commitment to the complainant’s rehabilitation since July 1996 which no doubt operates as a continuing reproach and deterrent.

The approach which courts have consistently taken to Attorney’s appeals, particularly where the respondent has not been required to serve any time actually in prison by the primary  judge, leads me to conclude that the appeal ought not succeed, Everett v The Queen (1994) 181 CLR 295;  R v Melano ex parte Attorney-General [1995] 2 Qd R 186 and R v Bazley CA No 220 of 1997, judgment delivered 5 August 1997. 

I would dismiss the appeal.