The Queen v Hitchens[1998] QCA 314

COURT OF APPEAL

McPHERSON JA

AMBROSE J

BYRNE J

BRISBANE

DATE 27/08/98

JUDGMENT

McPHERSON JA:  The applicant, who has applied for leave to appeal in this matter, was sentenced to imprisonment for 12 months suspended after three months, with an operational period of two years.  He was also disqualified from holding a driver's licence for two years.

The offence in respect of which this penalty was imposed was that of dangerous driving.  The story is that the applicant, who is a young man of low intelligence, was on 4 January 1998 at a service station with his brother in a car he had purchased for $400.  The applicant's brother knew someone who worked at the service station. 

The applicant himself had a driver's licence, which in all the circumstances does appear somewhat surprising, but the car was unregistered.  Whilst he was at the service station he started to show off by doing "burnouts".  The police noticed him and a chase ensued.  The time then was 3.52 p.m. and the service station was at Eagleby.  The chase went on for nearly 50 kilometres and lasted 25 minutes.

In the course of the chase the applicant drove at speeds of up to 130 km/h in a 50 km/h zone, 160 km/h in an 80 km/h zone, and 190 km/h in a 100 km/h zone. 

The applicant went on to a roundabout, causing two vehicles to take evasive action.  Traffic at the time was ranging between heavy and light and the applicant was changing lanes without proper indication and was weaving in and out of traffic.  While on Logan Road, the vehicle travelled through red lights on three occasions.  On the Pacific Highway he saw a police vehicle and swerved towards it and the passenger made a signal.

Police lost contact with the vehicle for a short time.  He was then seen in the Tarragindi/Holland Park Road area.  The passenger had left the vehicle and a police motorcyclist, who was searching for it, had to take evasive action to avoid a collision. 

The applicant collided with a stationary vehicle at a red light causing over $1,500 worth of damage.  He sped up Logan Road going against red lights.  At Princess Alexandra Hospital he slowed at a red light and collided with another car, causing damage of $5,704.

The police motorcyclist who was chasing him attempted to take an exit from Ipswich Road to Gurnard Road, but lost control and suffered injuries, namely a broken left elbow, severe grazing to arms, fingertips of the left hand and palm and knuckles, right knee, upper back and bruising to lower back.  The applicant, when apprehended, refused to talk to police.

The maximum penalty for this offence is three years and a $15,000 fine.  The sentence imposed which, as I said, was imprisonment for 12 months suspended after 3 with an operational period of two years, cannot, in my view, in all the circumstances be regarded as excessive. Indeed the submission that is made in support of the application is not so much that the sentence is excessive but that the judge failed to pay sufficient regard to the applicant's mental state.

He is a person of low intelligence. A psychological assessment of his mental condition assesses it as in the lowest 10 per cent of the population, and suggests that he has an IQ of about 75. 

The point is made that he entered a timely plea of guilty and so on, and he has a limited criminal history and traffic history.  The criminal history consists of assaulting police in performing their duty, possessing dangerous drugs, utensils, pipes and so on; and there are some minor incidents of a traffic violation nature, such as failing to wear a safety helmet, stating a false name and address and failing to wear a bicycle helmet.

The essence of the submission put by Mrs Richards on behalf of the applicant is that his limited intellectual ability is such that he would be at a considerable disadvantage in the prison regime and that other prisoners will probably take an unfair advantage of him.  One ought to in my mind think carefully about submissions of that kind and ought not to too readily send intellectually disadvantaged persons to a place like a prison where they may not be able to protect themselves, but will be, in a sense, the prisoners of other prisoners, whose attitudes towards disabled persons may be far from kindly or humane.

Nevertheless, the sentence in this case is a short one and it is right to say that the offence involved is one where the element of deterrence has a stronger part to play than it has in a number of other cases which involve moral rights and wrongs where the intellectual impairment of an individual is perhaps of greater relevance.

In circumstances like these, the law, it seems to me, has to be enforced in order to ensure that others, who know what has happened, do not imagine that they are free to commit offences of this kind without some degree of real punishment, in order to make them realise the risks that are involved in this sort of behaviour.

For my part, I am most surprised to discover that a person of this level of intellectual function can hold a licence or can obtain one, but that is beside the point.  The sentence, which is effectively one of three months, does not seem to me to be so severe, even in the case of a person like this, that one could fairly set it aside.  On the other hand, it must be said that the nature of the offence, the circumstances of its commission and its duration, and the risks which it presented to other road users are so serious that it would send the wrong message if we were to say that it was a case in which the Judge simply ought not to have imposed a prison sentence on this offender at all.

Personally, I am far from thinking that he was wrong in doing so, and I would therefore refuse the application for leave to appeal.

AMBROSE J:  I agree.  It was contended on behalf of the applicant that the sentence which ought to have been imposed was a probation order for three years and a community service order.  While undoubtedly there may be arguments that that would have been fair to both the applicant and the community, it seems to me impossible to contend that the sentence actually imposed was a manifestly excessive sentence, and in my view it would not be appropriate for this Court to embark upon getting pre-sentence reports and making probation orders et cetera simply because it might appear that that might have produced a more acceptable result.

The onus is on the applicant, in my view, to show that it was a manifestly excessive sentence, and in my view that has not been achieved.  I agree that the appeal should be dismissed.

BYRNE J:  I agree with the orders proposed by the presiding Judge and with His Honour's reasons.

McPHERSON JA:  The order is that the application is refused.