The Queen v Slater[1997] QCA 42

COURT OF APPEAL

MACROSSAN CJ

McPHERSON JA

BYRNE J

CA No 518 of 1996

THE QUEEN

v.

SHAUN JEROME SLATER Applicant

BRISBANE

DATE 26/2/97

JUDGMENT

THE CHIEF JUSTICE:  On this appeal against sentence on the ground of its being manifestly excessive, we see that the sentencing District Court Judge imposed one sentence only which was a term of imprisonment of seven years, imposed, as the Judge said, on count 3.  He disqualified the applicant from holding or obtaining a driver's licence and declined to make any recommendation for parole.

The applicant had pleaded guilty to each of three counts of an indictment alleging separate offences occurring on the same day, 24 August 1996, on the Bruce Highway in the vicinity of Farleigh, Mackay and Kuttabul.  Actually, it appears that the conduct in question which gave rise to the three counts was some relatively continuous piece of driving by the applicant.  The first two counts were of dangerous driving with the circumstance of aggravation that the applicant was adversely affected by an intoxicating substance, namely liquor and the third and most serious of the counts was dangerous driving causing grievous bodily harm to a woman driver on the highway at a time when the applicant had a blood alcohol concentration in excess of 150 milligrams of alcohol per 100 millilitres of blood.  The maximum penalty for each of the first two offences had penalties been imposed was a five years term of imprisonment and for the third more serious one it was 14 years. 

What the Judge said in the course of his sentencing remarks that he was proposing to do was this.  He said he proposed to impose one sentence for all three offences and the sentence would be imposed specifically in respect of count 3 but it would take into account the totality of the applicant's driving - that is, the driving in each of the three separate counts.  It does not seem that it would have been reasonably open to object to the Judge taking into account the totality of the driving and the offences committed in the course of it in imposing his sentences but there does not appear to have been any justification for his failing to impose sentences - any sentences at all, that is - on the first two counts. 

Of course, the one specifically imposed on the count with which we have become directly concerned - that is, a sentence of seven years - would have exceeded the maximum which could have been imposed on the first two counts had the Judge purported to make it referable to them.  However, there is no effective challenge to the apparent irregularity in all of this and we are left with the task of considering whether the sentence imposed on count 3 was excessive taking into account the totality of the criminal conduct.

The applicant had an extremely bad criminal history and it included a very large number of offences of drink/driving and driving while disqualified.  Compared with any of the standards one sees in the Courts from time to time it is hard to think that there would be many others that would exceed it for continuous criminal conduct relating to the driving of motor vehicles.

The applicant is a 36 year old, or was at the date he was dealt with, and his criminal history appears in three different sources in the material before us, not all of it totally consistent but from our point of view absolute precision is not necessary in dealing with this case. 

The first offence, committed when he was a child, was in 1974 and that can be put to one side.  It was a minor matter.  Then, as time went by, we see that he committed burglary and then there were offences connected with the possession or use of firearms and other criminal activity not related to drink/driving or unlicensed driving.  Nevertheless, the history sheet dealing with the general criminal behaviour of aspects is extensive enough.  Then there is another sheet which is said to be a traffic record dating from 18 October 1986 to 18 October 1996 and it, in that period, seems to cover six or so instances of driving while disqualified, five or so cases of drink/driving and another occasion of failure to provide breath for analysis. 

Then, in the prosecutor's submissions below, we see that the Court was informed that in January of 1996 he was convicted of driving while under the influence of liquor and even more relevantly on 17 August 1996 he was apprehended for driving whilst under the influence of liquor or a drug and that is, just some seven days before the commission of the offences with which we are concerned.  That last matter which I have referred to would have some particular relevance because one of the matters urged in his favour was that in the broad period of years to which I have referred a little previously - that is, covering the years 1986 to 1996 - there were five years when he was free of drink/driving convictions.  Anyhow, the important thing is that he had a very bad traffic history.

The next matter of considerable significance is that the dangerous driving on the day in question covered by the three counts amounted to very serious episodes and I shall give some outline of what was involved in them.  On the first count it was said that shortly after 3 in the afternoon the applicant's motor vehicle passed another and after passing that vehicle it accelerated swiftly away but then proceeded to overtake a further vehicle in front where the traffic lane was narrow and the speed limit was restricted to 80 miles an hour. 

The applicant's vehicle in the course of that next manoeuvre mounted a traffic island in the middle of the road just missing hitting a Keep Left road sign. 

Then a little bit further on another vehicle was overtaken by crossing over double lines where forward vision was very much restricted because of an embankment in the vicinity.  Then double white lines were crossed again.  On several occasions there was swerving over onto the incorrect side of the road and then back again as oncoming traffic approached. 

A description is given of the matters relied on for the second count.  The conduct there consisted of this.  The applicant overtook a bus and a line of cars travelling northbound from Mackay.  The bus driver observed the applicant's vehicle to be overtaking by crossing double white lines on a hilly and winding section of the road and almost at the crest a southbound semi-trailer came over the hill and the applicant's vehicle was obliged to cut back sharply onto its correct side and the bus driver following had to ease up on his accelerator to allow the applicant back in on the correct side of the roadway.

The third count which involved the injured person, a Mrs Godfrey, took place in these circumstances.  She was driving over a small rise and she saw the applicant's vehicle come over the rise travelling towards her.  The applicant's vehicle then suddenly veered over onto the incorrect side of the road.  Mrs Godfrey sounded her horn, took what evasive action she was able to but could not escape a head-on collision which took place with the applicant's vehicle entirely on the incorrect side of the road and Mrs Godfrey entirely on her correct side.

A blood alcohol reading of the applicant taken about two hours later showed point 192 which the sentencing Judge correctly described as a significant reading.

It emerged that the applicant had been drinking at Sarina for an extended period, some four hours, before setting off to drive to Home Hill.  He was well aware of the legal limit and at the time he was disqualified absolutely from holding or obtaining a driver's licence.  He was at that time it emerged on bail for the offence committed about a week before.

Mrs Godfrey in the accident was severely injured and the Judge in his sentencing remarks outlined some of her injuries.  They consisted of a fractured and deformed left humerus in the upper arm which was the source of most of the pain that Mrs Godfrey experienced; fractured right heel bone; fractured fourth and fifth metatarsals; a severe whiplash injury; injuries to both wrists and ankles.  All of this involved considerable pain.  There was major surgery needed on her left arm and a surgical insertion of a plate, pins and screws was undertaken.  She will be left with permanent scarring of that arm.  She will be unable to fully straighten the arm ever in the future according to the medical report.  The whiplash injury resulted in damage to nerves running down her abdominal wall affecting the flow of blood to her legs so that her legs are blue, cold and over sensitive.  According to the medical report she would at that time require further treatment of an orthopaedic nature.  The whiplash injury was expected to result in a permanent general level of disability. 

There were severe psychiatric disturbances as well.  Upsetting nightmares followed the incident.  Mrs Godfrey found sleeping very difficult.  Her appetite was disturbed.  She had to be heavily sedated before she was able to travel in motor vehicles and was left with a fear of enclosed spaces.

She has suffered as well considerable financial damage as a result of the injuries she received in the accident.  Below, counsel appearing for the applicants conceded, as the Judge recorded, that a sentence of five to six years was warranted in the applicant's case; the prosecutor said seven to nine years was the appropriate range.  It is true that the applicant pleaded guilty and that fact was recorded below.

The Judge said, obviously correctly, that the applicant's history displayed utter and persistent contempt for orders of the Courts in relation to licence disqualification.  He then imposed the term fo imprisonment of seven years on the third count as I have already indicated.

We had our attention invited, in the course of the appeal argument, to two cases, in particular one of Vessey, CA 453 of 1995 where the Court of Appeal increased a sentence imposed below from some six and a half years up to nine years but added a recommendation for consideration for parole after four and also the case of Haydon where a sentence of five years was imposed below and on appeal by an applicant the Court disallowed the application saying that the sentence could not be regarded as excessive.

Obviously that was a decision which would not be of particular assistance to us in view of that circumstance.  I should add a reference:  it was CA 396 of 1996.

In all of the circumstances I would have to say that in view of the conduct involved and particularly because of the applicant's traffic history and allowing also for the seriousness of the injury caused to the unfortunate victim it has not been demonstrated that the sentence imposed in the present case was excessive or called for interference and I would refuse the application.

McPHERSON JA:  I agree.

BYRNE J:  I agree.

THE CHIEF JUSTICE:  The application is refused.