The Queen v Riddell[1997] QCA 5

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 470 of 1996.

Brisbane

[R v. Riddell]

THE QUEEN

v.

SHAYNE DENNIS RIDDELL

(Applicant)

Fitzgerald P.

Davies J.A.

Fryberg J.

Judgment delivered 14 February 1997

Reasons for Judgment delivered 21 February 1997

Judgment of the Court

1. APPLICATION FOR LEAVE TO APPEAL GRANTED.
2. APPEAL ALLOWED.
3. CONVICTION RECORDED.
4. THE APPLICANT IS SENTENCED TO A TERM OF IMPRISONMENT OF ONE YEAR FROM THE DATE OF THIS JUDGMENT TO BE SERVED BY WAY OF AN INTENSIVE CORRECTION ORDER.
5. THE ORDER DISQUALIFYING THE APPLICANT FROM HOLDING AND OBTAINING A DRIVER’S LICENCE REMAINS.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14 February 1997

Reasons for Judgment delivered 21 February 1997

The applicant was convicted in the District Court, on his own plea of guilty, on 14 October 1996, of dangerous driving causing death and grievous bodily harm on 5 May 1995.  He was sentenced to 18 months imprisonment and he was disqualified from driving for 5 years.  At the time of commission of this offence the applicant was 18 years of age.  He has no other criminal convictions and no traffic convictions.  Apart from this offence he appears to be a youth of good character and good prospects.  He was a good student at school, he was in full time employment at the time of commission of the offence and his work future appeared bright.

It is plain that the cause of the tragic incident in which two of the applicant’s passengers were killed and one injured was the applicant’s driving at an excessive speed.  The accident occurred at 9 pm at night in Azalea Street, Inala.  The applicant knew the road, the night was fine and clear and the road was dry.  The speed limit was 60 kmph.  There is no suggestion that he had consumed alcohol.

Estimates of the applicant’s speed vary greatly.  The applicant himself has no recollection of the accident.  The surviving passenger estimated it at more than 70 kph.  Other witnesses who saw it gave estimates varying between 70 and 150 kph.  In the light of such varying estimates it is impossible to say more than that it was in excess of 70 kph. 

Whilst travelling at this speed the car hit a hump in the road and became airborne.  It was a relatively small hump, in the sense that it did not obscure the applicant’s view of oncoming traffic.  The applicant, who was an inexperienced driver, apparently lost control of it and, when it returned to the road, it swerved one way and then the other, finally colliding with a tree causing, as we have said, the death of two passengers and injuries to another.  The applicant was also injured.  All occupants of the car were youths of 17 or 18 years of age.

On the sentence hearing the Crown prosecutor conceded that there was no evidence of sustained dangerous driving over a number of streets.  However, there was one earlier incident in which, on a corner, the applicant caused the car to "fish tail".  He was then told by the passengers to settle down and the surviving passenger said that thereafter there was nothing to alarm him in the applicant’s driving.

The Crown prosecutor below submitted that this was a case of deliberately  reckless driving in that the applicant made the vehicle airborne at a speed well in excess of the limit.  However, he eschewed any submission that the applicant was attempting to make the car airborne.  The Crown case was, therefore, simply that the applicant was driving at an excessive speed in the circumstances, a speed greater than 70 kph.  Consequently, on the material before the Court, the only possible conclusion is that this is not a case of driving in a manner which was deliberately dangerous.  Rather, it is simply a case where the applicant came into contact with the situation beyond his control because he was driving too fast in the circumstances and was inexperienced.

The applicant pleaded guilty at an early stage and has shown considerable remorse for his conduct.  No doubt, whatever penalty is imposed on him, the applicant will have already suffered greatly.

In cases of this kind one always has great sympathy for the families of young people who have so tragically died and in sentencing an offender such as the applicant the Court must have regard to any emotional harm to members of the deceased’s immediate family.  In this case there was a very moving victim impact statement submitted on behalf of the late Christian Francis, one of the youths who died in this collision and we have taken that into account. 

General deterrence is also an important factor in cases of this kind.  Driving of this kind, having such tragic consequences, is unfortunately common.  It is therefore necessary in this case, in the public interest, as the applicant’s submissions recognise, to sentence him to a term of imprisonment.

However, regard must also be had to the provisions of the Penalties and Sentences Act, in particular the terms of s. 9(3) and the general intent of s. 9(4).  In our view, having regard to the age, unblemished record and remorse of the applicant, to his early plea of guilty and to the fact that his dangerous driving was more attributable to a combination of excessive speed and inexperience than to embarking on a deliberately dangerous course of driving, the sentence imposed was manifestly excessive, in the light of the cases cited to us, none of which, however, was closely comparable.  Moreover, it is desirable, in a case such as this, to impose a sentence which, whilst it marks the public disapproval of conduct such as this and provides some general deterrence, keeps this young man out of gaol.  Accordingly, we accept the submissions made on his behalf that he be sentenced to a term of imprisonment of 1 year and that the Court make an intensive correction order for him.  That of course involves recording a conviction and that should be done.  In accepting that such a sentence and order are appropriate it is relevant that the applicant has already spent nearly four months, since 14 October, in gaol.

We would accordingly grant the application, allow the appeal, record a conviction, sentence the applicant to a term of imprisonment of 1 year from the date of this judgment and make an intensive correction order for him.  The order disqualifying him from holding and obtaining a driver’s licence for 5 years should remain.

Generally, when this Court alters a sentence imposed in the Trial Division or a lower Court, the sentence substituted or imposed by this Court takes effect from the date when the original sentence began notwithstanding s. 154 of the Penalties and Sentences Act 1992:  see subss. 668E(3) and 669A(1) of the Criminal Code.  On this occasion, however, it is intended that the new sentence determined by this Court should take effect from the date of this Court’s order.