The Queen v Balfe[1998] QCA 14

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 444 of 1997

Brisbane

[R. v. Balfe]

THE QUEEN

v.

ALBERT JAMES BALFE

(Applicant)

Fitzgerald Pspan

McPherson J.A.

Byrne J

Judgment delivered 20 February 1998

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL REFUSED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20 February 1998

After his trial in the Maroochydore District Court, the applicant was convicted of dangerous driving causing death and sentenced to three years imprisonment. He seeks leave to appeal against the sentence contending that it is manifestly excessive.

Shortly before noon on 26 August 1996, the applicant was driving a prime-mover drawing a semi-trailer heavily laden with 43 tonnes of crusher dust in a southerly direction along Glasshouse Mountains Road heading towards an intersection with Red and Beerburrum Roads. It was a sunny day. The weather was clear. The condition of the road was unremarkable.

The speed limit for traffic approaching the intersection was 80 kph. One lane carried southbound traffic. At the intersection itself, there were three lanes. Vehicles intending to turn right into Beerburrum Road were to be contained within the continuation of the southbound lane. Another permitted southbound vehicles to pass to the left of those turning right into Beerburrum Road. The third branched off into Red Road. A driver who, like the applicant, approached the intersection from the north had an unobstructed view of the intersection for about 350 metres.

Two brothers, aged 20 and 18, were seated in a utility motor vehicle which was stationary at the intersection, facing south and waiting for an opportunity to turn right into Beerburrum Road. The prime-mover struck the car, pushing it quite some distance along the road. When the two vehicles came to rest, the prime-mover was over the utility section of the car. Both the car and the prime-mover were destroyed by fire. The two young men were killed.

Mr Curry testified to having followed the semi-trailer for about 5 or 10 kilometres during which time it travelled at about 80 kph. His impression was that the brake lights of the prime-mover came on at about the same time as the impact with the utility. Other evidence also indicated that the applicant had not slowed the prime-mover before impact. Mr Young thought that the car had been stationary for about 120 seconds when the collision occurred. He saw the prime mover hit the car but did not hear any sound indicative of the hard application of brakes before impact. There were no skid marks on the road leading to the point of collision. From the place where the utility was struck, there were gouge, scratch and tyre marks for a little more than 115m.

After the collision, the applicant, jumped from his vehicle. Flames followed him. He was burnt on the back and arms. Soon afterwards, he spoke to a police officer. When asked what had happened, the applicant, who was in shock, replied,“All of a sudden, the car was there, and bang”. Asked why he did not see the car, he said, “I don't know”. The applicant told the police officer that he had been “just driving along” at 75 to 80 kph and that he applied his brakes only after the  collision.

No mechanical defect or condition of the road contributed to the incident.

About 15 seconds elapsed between the moment when the applicant should first have appreciated the presence of the stationary car and the fatal impact. In these circumstances, the judge concluded, appropriately enough, that the case involved prolonged, not momentary, inattentiveness by the driver of a heavily laden, large vehicle on a “relatively busy road”.

The applicant was 54 years old. He had been driving heavy vehicles for 26 years. His criminal history was old and of little significance. He was convicted of larceny and breaking, entering and stealing in 1962, of stealing in 1963, of and false pretences in 1969. He had not been dealt with for a serious offence since 1973 when convicted of driving whilst under the influence of liquor. His traffic history consisted of small fines more than five years earlier for exceeding the speed limit by less than 30 kph and for failing to give way. Other personal circumstances of the applicant deserve mention. Although the matter proceeded to trial, the applicant was, it seems, remorseful. The deaths impacted on his life. He has not been able to work since, and he has received psychiatric assistance.

The devastating effect of the applicant's dangerous driving on the family of the two young men was poignantly described in their mother's statement. The tragedy seems certain to have permanent consequences for the parents as well as for the teenage sister of the men.

As the applicant was not affected by alcohol or drugs, the maximum penalty for this offence was seven years imprisonment.

There was no suggestion that the applicant had been distracted by an emergency. The substantial period during which he failed to detect the presence of the utility is unexplained. The judge was inclined to infer that the applicant had been preoccupied with a task that distracted him. Whatever the cause of the failure to appreciate the presence of the car may have been, the sustained omission to do so was gravely culpable, and it had the most tragic consequences.

For an attentive driver, the speed of the prime-mover was not excessive given the road and traffic conditions, no drugs were involved, and the applicant had not deliberately driven dangerously. Reckless inattention, not deliberate conduct, was responsible for the deaths. In that sense, the applicant's offence is less morally reprehensible than that encountered in many dangerous driving cases. Nonetheless, unintended results can matter a great deal to the determination of an appropriate punishment where dangerous driving causes loss of life; and the applicant must confront the consequences of his recklessness, which resulted in two deaths and much distress to the surviving family members.

Due recognition of the degree of the criminal negligence involved and its consequences called for the imposition of more than a short custodial sentence.

Three years imprisonment was a heavy sentence. However, in view of the consequences, in all the circumstances it is not beyond the range of a sound sentencing discretion.

The application is refused.