The Queen v Rowley[1998] QCA 339

COURT OF APPEAL

McMURDO P

PINCUS JA

AMBROSE J

CA No 240 of 1998

THE QUEEN

v.

ANTHONY ROBERT ROWLEY

BRISBANE

DATE 26/08/98

JUDGMENT

THE PRESIDENT: This is an application for leave to appeal against a sentence imposed in the District Court at Brisbane on 18 June 1998 on one charge of dangerous operation of a vehicle causing grievous bodily harm with a circumstance of aggravation.  The applicant was sentenced to four years' imprisonment with a recommendation for release on parole after 16 months.  He was also disqualified from holding or obtaining a driver's licence for two years. 

The grounds of the application are firstly that the sentence is manifestly excessive. Secondly, it is claimed the learned sentencing judge failed to give full weight (a) to the extent of the applicant's personal injuries and need for ongoing medical and hospital treatment, (b) to the remorse demonstrated by the applicant, (c) to his cooperation with police and early plea by way of ex officio indictment, (d) the fact that the applicant's personal injuries made his time in prison more difficult for him, and (e) that he has not driven a motor vehicle since the offence occurred. Thirdly, he submits the prosecutor failed in his duty to the court to present the evidence against him fairly in that (a) he did not verify details of the victim's impact statement which was tendered to the Court unsigned, and (b) did not address the Court on the applicant's personal injuries and whether he would receive ongoing treatment and medical services whilst in gaol. This last ground was not pressed by the applicant, who represents himself, today.

The offence occurred at about 5.10 a.m. on 31 August 1997 when the applicant was driving his sedan along Nudgee Road, Northgate. The weather was fine, the road was dry and it was still dark.  Nudgee Road at that location was a built-up area with a speed limit of 60 km/h and was considered a "well travelled road". The applicant passed another vehicle travelling in the same direction at a speed estimated at about 100 km/h. He then entered an s-curve without braking. Police investigators estimated his speed at this time based on measurements taken at the scene from tyre marks at approximately 89 km/h.

The complainant was travelling in the opposite direction at about 50-60 km/h on his way to work. He was a 55-year-old horse trainer. The applicant's vehicle failed to negotiate the kerb and travelled onto the incorrect side of the road, colliding head on with the complainant's vehicle.

The complainant has suffered severe injuries, including a flail chest with multiple bilateral rib fractures; a compound fracture of the right knee; an acetabular fracture of the right hip; a fractured right ankle; a puncture wound to the left thigh; and assorted minor injuries. The most severe injury, the flail chest, if left untreated would have resulted in respiratory failure and death. The complainant was in intensive care for some time after being transferred to Prince Charles Hospital, Chermside for expert chest treatment.

The applicant was calculated to have had a blood alcohol concentration of .182 per cent at the time of the collision. He also received severe injuries in the collision and a detailed medical assessment was tendered at the sentence proceedings.

His Honour specifically took into account the applicant's plea of guilty by way of ex officio indictment with its savings to the community. I must agree with His Honour's comments that the case falls into the worst category of dangerous driving offences involving excessive speed, driving on the incorrect side of the road, a collision, devastating injuries to another and driving with a blood alcohol level exceeding .15 per cent, but it is not necessarily the worst kind of case in that category.

The applicant had some traffic history, including a prior conviction for driving a motor vehicle with a prescribed concentration of alcohol of .071 on 30 May 1996. He also had some prior conviction in the Magistrates Court for drug offences and a conviction for stealing in 1993.

The maximum sentence for this offence is now 14 years imprisonment.  At the sentence, both prosecution and defence submitted that four years was an appropriate head sentence. The applicant concedes as much today. The recommendation for parole, eight months earlier than the applicant would otherwise be eligible, recognises the mitigating factors of this offence as does the head sentence of four years. A review of comparable sentences confirms the sentence is not manifestly excessive.

The sentence imposed by the Judge below indicates to me that he gave full weight to the details of the personal injuries suffered by the applicant and his need for ongoing treatment; to the remorse shown by him; and to his cooperation with police. His early plea by way of an ex officio indictment was specifically acknowledged by His Honour. 

His Honour appears to have carefully perused the medical material before him relevant to the applicant and the sentence imposed is consistent with His Honour knowing that the time spent in gaol by the applicant would be more difficult for him because of his injuries. There is nothing in the material tendered by the applicant today to suggest that the medical treatment that he requires is extremely urgent or that he will not receive adequate treatment whilst he is in gaol, although it will obviously be much easier for him when he is released.

The fact that the applicant had not driven a motor vehicle since the date of the offence charged and the applicant's letter to the complainant after he was charged are no doubt matters that the sentencing Judge took into account in considering the remorse shown by the applicant and in fixing the head sentence and the recommendation for early release.

In circumstances where the applicant was represented by an experienced and competent barrister who tendered a large quantity of medical material on behalf of the applicant to the Court the Prosecutor was not obliged to specifically address the Court on the applicant's personal injuries and the question of ongoing treatment and medical services whilst in gaol.

A victim impact statement not signed by the complainant but signed on his behalf by Ms Phyl Den Ronden from the lobby group Citizens Against Road Slaughter Ltd was tendered to the Court as Exhibit 5. The sentencing Judge was critical of the statement as it was not signed by the complainant. The Prosecutor had been informed that the complainant was aware of the contents of the statement. Section 14 of the Criminal Offences Victims Act 1995 provides:

"(1)At the sentencing of an offender for a crime the Prosecutor should inform the sentencing Court of appropriate details of the harm caused to a victim by the crime;

(2)In deciding what details are not appropriate the Prosecutor may have regard to the victim's wishes;

(3)A Prosecutor should ensure the sentencing Court has regard to the following provisions if it would help the victim to have the benefit of the principle mentioned in subsection 1A, Penalties and Sentences Act 1992 section 9(2)(c). That section states:

'In sentencing an offender a Court must have regard to the nature of the offence and how serious the offence was, including any physical or emotional harm done to a victim.'

It is clear from His Honour's sentencing comments and from the transcript that His Honour was rightly unimpressed with a victim impact statement not signed by the victim but rather by a third party. When the victim impact statement was tendered His Honour commented, "Well, we have medical reports in any event which set out his injuries in considerable detail." This does not suggest that His Honour was influenced to any great extent by the victim impact statement.

A number of references handed up today, and not tendered at the sentence, would not, in my view, have affected the sentence imposed by His Honour. Sadly, people who are otherwise not particularly anti-social members of society frequently commit offences of this type, which are very serious. 

There is nothing in any of the grounds set out by the applicant or argued today warranting interference with the sentence below in my view. I would refuse leave to appeal and dismiss the application. I would also recommend that the applicant receive treatment as soon as soon as possible for his orthopaedic problems whilst incarcerated.

PINCUS JA: Legislative disapproval of behaviour of this kind has been manifested by increasing the sentence. The offence which was committed, with the circumstance of aggravation mentioned in section 328A(4)(b) makes having an alcohol level above the prescribed limit of 150 milligrams per 100 millilitres a matter which increases the penalty by four years. The sentence imposed was not at a high level in relation to the maximum, 14 years, and I see no reason to disagree with the view which was expressed by both counsel below that this was an appropriate figure. I might say that had the applicant himself not been injured, as he was quite severely in this accident, then perhaps the judge would have taken a more severe view of the matter. 

I agree with the learned presiding judge that it is a case where the prison authorities should be careful to ensure that the applicant receives appropriate orthopaedic treatment. I agree that the application should be refused.

AMBROSE J: I agree.

THE PRESIDENT: The orders are: the application for leave to appeal against sentence is dismissed; the Court recommends the applicant receives treatment as soon as possible for his orthopaedic problems whilst incarcerated.