The Queen v Rahn[1998] QCA 338

COURT OF APPEAL

THOMAS JA

MACKENZIE J

HELMAN J

BRISBANE

DATE 06/08/98

JUDGMENT

THOMAS JA:  The applicant seeks leave to appeal against sentences imposed in the District Court for a variety of offences committed over a five month period, commencing in July 1997. 

The conduct for which he fell to be sentenced, commenced with some offences of dishonesty in that month.  Then on 14 August 1997, he dangerously drove a motor vehicle whilst affected by an intoxicating substance, amphetamines, and caused death.  Unfortunately, awareness of the dreadful consequences of his actions did not interrupt his extended anti-social spate of offences.  On 30 October 1997, he was convicted of a relatively serious example of the offence of threatening violence.  Over the period between July 1997 and January 1998 there were 14 offences of dishonesty, comprising two of stealing, seven of receiving, one of unlawful use of a motor vehicle and various offences involving the breaking and entering of dwellinghouses.  There was also an offence in September 1997 of uttering counterfeit money. 

The learned sentencing Judge imposed sentences of six and a half years on the dangerous driving causing death and disqualified the applicant absolutely from holding a driver's licence.  He imposed six months cumulative with respect to the threatening violence offence.  He imposed 12 months cumulative, with respect to the property offences that have been mentioned above and he imposed three months on the uttering counterfeit money charge, the latter sentence being concurrent.  By that means, His Honour framed an effective sentence of eight years imprisonment, with a recommendation that he be considered for release on parole after three years. 

The applicant was, at the relevant time, 27 years old.  His past criminal history is limited, though by no means insignificant.  It includes possession of cannabis, discharge of a firearm, other offences of a like nature, malicious damage, larceny and various driving offences.  These include three separate convictions for driving in excess of the prescribed concentration of alcohol.  On each occasion his licence was suspended for a limited period.  He also has a number of convictions for speeding and other less serious traffic offences.  None of the above however resulted in prison sentences.

The circumstances of the offences may be briefly stated.  The driving offence occurred in the afternoon when the applicant was driving a vehicle, towing a boat on a trailer along a road in Camira.  The deceased was driving in the opposite direction.  The applicant's vehicle was observed to move onto the incorrect side of the road.  One witness thought that it was actually going to make a right-hand turn into a side street, but there was no indicator activated on the vehicle.

A collision occurred and the other driver, a mother of young children, was killed.  Road conditions were described as good to excellent.  A blood sample from the applicant revealed point 035 milligrams per litre of amphetamine and point 64 milligrams per litre of methylamphetamine.  A Government medical officer stated that the level of methylamphetamine was more than 12 times the upper limit of what he considered to be a normal concentration of that drug in the blood for a user.  It would seem that the applicant chose to drive with an extraordinarily high level of amphetamines in his system.

He suffered no injury beyond minor seat belt injuries.  The impact on the family from the death of the mother of young children has been very extensive. 

After being arrested on this charge, he was apparently released on bail.  The next charge is that of threatening violence.  In the night, he visited his de facto spouse who was asleep in bed.  He told her that they were going away for a few days and held a gun to her head, saying, "This is it; I'm sick of your shit."  He then pulled the trigger, but the gun was not loaded.  He then made a further threat and told her to get dressed and began to load the gun.  The complainant was naturally very frightened.  She was dragged into the kitchen and a motor cycle helmet was placed on her and she was then taken to an area in Carole Park, before the applicant ultimately calmed down. 

It is unnecessary to detail the various property offences, other than to note that they include a number of serious matters, including burglary.  The uttering charge does not contain much detail, but apparently the applicant obtained the possession of three $100 notes and passed these to service stations and to a computer accessory firm. 

There is a disturbing psychiatric report.  It is said that the property offences were something of a spree - a sort of self destructive bender and that he was in a state of depression after the motor vehicle accident.  That hardly detracts from his responsibility for his own actions.  In my view, the fact that he reacted in this anti-social manner after what should have been a sobering shock and lesson, counts against him.  Matters suggested in mitigation included the psychiatric report, which suggests that he has a personality disorder, with anti-social and dependent traits and that such disorder is not responsive to psychiatric treatment.  That factor is obviously two-edged and is somewhat disturbing. 

His co-operation in bringing these matters to a head and in giving a relatively early indication of pleas of guilty certainly stand in his favour.  The threatening violence charge was not the subject of an early indication for a plea, but he ended up pleading guilty to that charge also.  So overall, he is entitled to consideration on that aspect.

It was also submitted that the driving for which he fell to be sentenced, occurred over a very short distance.  There seems to be some fallacy, in my view, in that particular submission, in that his assumption of control over a motor vehicle and trailer when he was impaired by a very considerable consumption of methylamphetamines suggests irresponsible and dangerous behaviour.  One naturally takes account of the fact that there is no suggestion that the aberrant driving occurred over a great distance.  However, the consequences were very serious. 

Counsel for the applicant referred correctly to the fact that the maximum penalty for driving which produces such a consequence, when the offender is impaired by alcohol consumption, is 14 years, whereas the present relevant maximum for such driving when impaired by other drugs, is a maximum of 10 years.

It was submitted that the sentence imposed for the first offence was at the top of the range for such an offence, although it was not submitted that it falls outside the range.  The burden of the submission was that the combination of the sentences, taking account of the cumulative sentences, makes the result overall excessive.  In short, one needs to bear in mind what is sometimes called the totality principle.  It may be noted that there was a recommendation for eligibility for parole after serving three years.  The written submission was that this did not give sufficient recognition to the co-operation of the applicant.  In summary, on his behalf, it was urged that the cumulative effect was overall disproportionate and that the recommendation for parole gave insufficient recognition to his co-operation.

In justification of the sentence, the Crown pointed out that the applicant was at least vulnerable to a "violent crime" declaration under section 161(B)(3) of the Penalties and Sentences Act, which if made, would require him to serve 80 per cent of the head sentence.  Obviously, His Honour did not choose to proceed along those lines and indeed, made a recommendation for parole something short of the halfway mark.

Reference to cases is unable to produce any authority which guides one on the overall totality of a combination of offences of this kind; however in relation to the principal offence of the fatal driving, I find some assistance in the cases of Byrne, CA 3 of 1995, 22 March 1995 and Vessey, CA 453 of 1995, 16 February 1996.  The approach since Byrne in this Court is plainly more severe than is indicated in that case and is inter alia affected by the new section 9 in the Penalties and Sentences Act, which became effective from 1 July 1997.  Among other matters there is a considerable emphasis upon public safety and of course that factor is a strong one in the present case.  Those cases suggest to me that the major sentence in this combined sentencing exercise was not manifestly excessive. 

In the end I consider that the total response of the learned sentencing Judge was quite an appropriate one.  Indeed, the sentencing remarks of His Honour show that he understood completely the competing contentions and so that he paid due regard to the submissions that were made below and that have to some extent been repeated and expanded upon here on behalf of the applicant. 

I would therefore refuse the application.

MACKENZIE J:  I agree.

HELMAN J:  I agree.

THOMAS JA:  The order will be application refused.