The Queen v Sanderson[1998] QCA 237

COURT OF APPEAL

de JERSEY CJ

THOMAS J

DERRINGTON J

No 134 of 1998

THE QUEEN

v.

KATHRYN JEAN SANDERSON

BRISBANE

DATE 15/07/98

JUDGMENT

THE CHIEF JUSTICE:  The applicant is a 28-year-old woman who pleaded guilty to dangerous driving causing death with the circumstance of aggravation that her blood alcohol concentration exceeded .15. She was sentenced to six and a half years imprisonment with a recommendation for parole after two years and nine months. In effect then she was given six months benefit with relation to parole on the grounds of her plea of guilty and her remorse. She seeks leave to appeal against that sentence.

The circumstances of the offence were as follows. At about 7.45 p.m. on 7 June last year the applicant was driving a vehicle at Alexandra Headlands at considerable speed, she lost control and the vehicle collided with a power pole killing two passengers, one in the front passenger seat and one in a rear passenger seat of the vehicle. The passengers were her friends with whom she had been drinking during the day.

At 9.20 p.m. the applicant's blood alcohol concentration was measured at .245. She had never held a Queensland driver's licence. A witness standing directly across the street from the power pole into which the applicant's car collided saw the vehicle travelling faster than normal, its wheels screeching, the vehicle fishtailing and then sliding into the power pole. The applicant had been drinking until late the night before and then again during the day of the accident. Victim impact statements from family members of the deceased were put before Her Honour.

Her Honour noted specifically the applicant's early plea of guilty and her remorse and a suggestion that she had been, as it was put, dared by her friends to drive the vehicle which was difficult to drive because of its gearing. The Judge also noted significantly that the applicant at the time was on probation for offences of dishonesty. A psychologist's report suggested that her personality was fragile and that she had experienced stress disorder since the offence. The essential submission for the applicant was that the learned Judge failed to take account of the circumstance that as it was put, "The deceased persons were aware of the applicants intoxication and in that sense participated or acquiesced in the applicant's driving." 

If that was relevant it is not clear that the Judge was unaware of it or failed to take account of it. Indeed Her Honour referred in her sentencing remarks to the fact that they had all been drinking substantially together. I am not to be taken as agreeing that that circumstance would be relevant anyway in mitigation but it is not necessary for me to deal further with that.

Counsel for the applicant contended for a range of four to six years in the end asking for five and a half years with parole recommended after two to two and a half years. Likewise I am not sure that an adjustment of that order from six and a half years with parole after two and three quarter years would be appropriate as reflecting a manifest excessiveness in the term imposed.  The learned Judge was referred to Vessey, Court of Appeal 453 of 1995, which she observed was a worse case than this and it certainly was but counsel suggested that allowing for the differences Vessey illustrated the relevant excessiveness of this six and a half year term.

The differences were Vessey's more serious driving record and the somewhat more serious character of the driving involving in that case, driving through a give way sign into an intersection and colliding with the deceased's vehicle overturning it. Vessey received nine years with parole recommended after four.

I am not persuaded that there was substantially relevant difference between the driving in that case and the driving in this. Vessey's driving history was certainly worse including previous convictions for driving under the influence of liquor and two absolute disqualifications but this applicant had been convicted in December 1995 for unlicensed driving and driving under the influence of liquor, driving in that situation with a blood alcohol concentration of .224.

In all of these circumstances I could not say that the distinction drawn with respect to sentence as between this case and Vessey was inappropriate. I consider in the end that the sentence imposed of six and a half years with parole recommended after two and three quarter years was appropriate to this bad case of dangerous driving causing death involving as it did the killing of two young people in a collision where the driver was unlicensed, on probation, driving at speed with a very high blood alcohol level and prior convictions for unlicensed driving and drink driving. I would refuse the application.

THOMAS J:  I agree.

DERRINGTON J:  I agree.

THE CHIEF JUSTICE:  The application is refused.