Attorney-General v Anderson[1998] QCA 355

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.  284 of 1998

Brisbane

[R v.  Anderson; ex parte A-G]

THE QUEEN

v.

CLINTON WAYNE ANDERSON

Respondent

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant

McMurdo P.

McPherson J.A.

Shepherdson J.

Judgment delivered 10 November 1998

Separate reasons for judgment of each member of the court, McPherson JA dissenting

APPEAL AGAINST SENTENCE DISMISSED

REASONS FOR JUDGMENT - McMURDO P.

Judgment delivered 10 November 1998

1. I have read the reasons for judgment prepared by Shepherdson J. who has carefully and fully set out the relevant facts in this case. 

2. All drivers, and especially the young and inexperienced, must understand the great responsibility involved when driving a motor vehicle.  The respondent in this case showed great irresponsibility in his driving.  He was unlicensed because of traffic infringements and had been drinking alcohol, although there is no suggestion his drinking was causative of the accident.  He admitted driving his utility truck with less than satisfactory brakes, into the setting sun with a very dirty windscreen through which it was difficult to see.  These factors however were also not causative of the accident.  The respondent was driving the utility truck down a suburban street where the presence of children and pedestrians could be expected.  It is not suggested that his speed, which was less than the 60 kph speed limit, was excessive.  He was looking at and talking to his passenger for some seconds instead of keeping a proper lookout on the road ahead.   The respondent’s failure to keep this proper lookout caused the death of a young child, and deep grief to the child’s mother and others close to her.

3. It was a well established sentencing principle prior to the Penalties and Sentences Act 1992 that it is undesirable to send a young person to jail.^[1]  That principle was enshrined in the Penalties and Sentences Act 1992 (“the Act”),^[2] however, s. 9(3) of the Act states:

“(3)However, the principles mentioned in subsection (2)(a) do not apply to the sentencing of an offender for any offence -

...

2. that resulted in physical harm to another person.”

The offence of dangerous driving causing death is an offence of this type and the Court must therefore not have regard to the sentencing principles that a sentence of imprisonment is a last resort and that a community based sentence is preferable.^[3]

4. Section 9(4) of the Act provides:

“In sentencing an offender to whom sub-section (3) applies, the Court must have regard primarily to the following -

1. the risk of physical harm to any members of the community if a custodial sentence were not imposed;

2. the need to protect any members of the community from that risk;

3. the personal circumstances of any victims of the offence;

4. the circumstances of the offence including the death of or any injury to a member of the public or any loss or damage resulting from the offence;

5. the nature of extent of the violence used or intended to be used in the commission of the offence;

6. any disregard by the offender for the interests of public safety;

7. the past record of the offender including any attempt at rehabilitation and the number of previous offences of any type committed;

8. the antecedents, age and character of the offender;

1. any remorse or lack of remorse of the offender;

10. any medical, psychiatric, prison or other relevant report in relation to the offender;

11. anything else about the safety of members of the community that the sentencing court considers relevant.”

The Court in this case must primarily consider the matters in s. 9(4) of the Act, which includes the age of the respondent^[4] but should also consider the general sentencing principles enshrined in s. 9(1) and (2), other than (2)(a) of the Act.

5. Deterrence is a relevant and important factor in sentencing in cases of this type.^[5] All drivers, whether youthful and inexperienced or more mature, must understand that where irresponsible dangerous driving results in death or injury, or potential death or injury, to members of the community then it is likely that a custodial sentence will be imposed, and sometimes, depending on the facts, a substantial custodial sentence. 

The maximum term of imprisonment for this offence is seven years.^[6]

6. The review of comparable sentences undertaken by Shepherdson J. in his reasons for  judgment and by the learned sentencing judge establishes that for an offence of this type, where alcohol is not involved as a causative factor; where  there is no excessive speed and where the dangerous driving is constituted by inattention over a short period, a custodial sentence is not inevitable, although custodial sentences suspended after a short period of actual detention are often imposed.  The question for this Court is whether the sentence imposed below, one of 3 years probation, 240 hours community service, the recording of a conviction and a five year licence disqualification,  is here inadequate or whether the learned sentencing judge erred in law.

7. The matters listed in s. 9(4) of the Act must be primarily considered, in as far as they may be relevant.  Mitigating factors include the lack of any criminal convictions; the respondent is 19 years old and was only 18 at the time of the offence; he had a good employment history and an impressive reputation in the community; he expressed remorse when interviewed by police and at sentence and he pleaded guilty at an early stage.  Against this was the seriousness of the offence in that the death of an innocent child resulted.  The child’s death has caused enormous grief to her mother and to others close to her.  There was no suggestion the respondent constituted a risk to the community.

8. The learned sentencing judge carefully and sensitively took these factors into account before deciding on the appropriate sentence.  Whilst a custodial sentence could have been imposed in this case, I am satisfied the sentence imposed was within the established range for offences of this type.  I am satisfied his Honour had sufficient regard to the gravity of the offence and the principles of deterrence.  Indeed, his Honour specifically noted, “Courts need to consider of course as part of the penalty process the deterrent aspects of a sentence, not so much to punish offenders but to underscore the importance of the precious quality of human life.”  The appellant has not shown his Honour erred in any way.  In all the circumstances, the sentence, although compassionate, was not manifestly inadequate.

9. I would also dismiss the appeal.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 10 November 1998

1. The respondent to this appeal by the Attorney-General pleaded guilty to a charge of dangerous driving causing death on 20 September 1997.  The learned District Court judge made a probation order, coupled with community service, and disqualified him for five years from obtaining a licence.

2. At the time the respondent was not licensed to drive.  His licence had been cancelled some two months before because of an accumulation of demerit points.  He had previously twice (in January and in March 1997) been fined for exceeding the speed limit in a built up area, and once for driving otherwise than in accordance with the terms of his learner’s permit.  That was in January 1997.  He had thus showed scant respect for traffic regulations even before being licensed to drive apparently at some date early in 1997.

3. On the occasion in question the respondent had been drinking and his blood alcohol concentration was .055%, although this was not a circumstance specially charged against him.  When the collision occurred he was again driving in a residential area, but this time at a speed said to have been between 50 and 55 kph.  The windscreen of his vehicle was so dirty as to make it difficult to see out of it. The sun was low and the glare would not have aided vision.  The brakes of the vehicle were defective, although this played no part in the collision with the child for the stark reason that the respondent was talking to his front seat passenger and had his head turned in that direction.  This may well explain why the passenger caught a glimpse of the child before the collision but the respondent did not.

4. The child should not have been on the road, but her conduct is characteristic of children of her age, who do not understand the perils of fast-moving traffic.  The area was residential.  It was in Walker Street, Collinsville, where the presence of children on the road would not have been unexpected.  The respondent is said to have been genuinely remorseful; but it cannot equal the remorse of the parents of this unfortunate child.

5. The lives of individuals are, in a sense, put at risk by the mere act of others in driving motor vehicles even if no or only momentary carelessness is involved.  That is, however, not enough to make all driving criminal.  The offence under s. 328A(1) of the Code is now constituted by operating a vehicle dangerously, as defined in s. 328A(5).  The legislative alteration has diminished rather than increased the seriousness of the conduct required to be established in the time that has elapsed since the decision in McBride v. The Queen (1966) 115 C.L.R. 44.  It therefore remains true, as Barwick C.J. said in that case (115 C.L.R. 44 at 50), that the concept implicit in the offence is “in sharp contrast to the concept of negligence”. 

6. It was to this offence that the respondent pleaded guilty.  In essence the facts show that both at and before the time of collision, the respondent had incapacitated himself from seeing the child and of recognising the risk to her that his driving presented.  This being so, I would have been disposed to say that the sentencing judge was mistaken in failing to impose a prison sentence of some duration even if it was suspended after a short period.  Despite previous encounters with the traffic laws, the respondent seems to have remained studiously indifferent to the requirements imposed upon him as a driver.  However, since my colleagues have formed a different opinion on the outcome of the appeal, it must be disposed of in accordance with their view.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 10 November 1998

1. The Attorney-General has appealed against a sentence imposed on the above named respondent Clinton Wayne Anderson on 3 August 1998, when he pleaded guilty in the District Court at Bowen, to a charge that on 20 September 1997 in Walker Street, Collinsville he operated a Toyota Utility motor truck dangerously and thereby caused the death of Tara Widt.

2. A learned District Court judge made a probation order for 3 years, ordered him to perform 240 hours of unpaid community service, disqualified him from holding or obtaining a driver’s license for 5 years and recorded a conviction against him.

3. The respondent was born on 12 July 1979, and was 18 years old at the time of the offence.  He had no prior criminal history, but he did have some traffic history to which I shall later refer.  The circumstances of the offence were as follows.

4. The dangerous driving occurred at about 5.30 p.m. on Saturday 20 September, 1997 on a road in a residential area of Collinsville.  The weather was fine, and the sun had not yet set.  The road was sealed from kerb to kerb - the distance between the kerbs being 13.05 metres.  The incident occurred on a straight section of the road over which the respondent had apparently driven at least 100 metres before the incident.

5. The deceased was a 22 month old female child whose home was in Walker Street.  Just before the incident she and her mother had been at a residence opposite their house.  At the relevant time the child had somehow escaped from the confines of that residence and a neighbour who lived nearby saw her standing on the road.  The neighbour called the child’s mother, and then ran onto the road to take the child but before she could do this the collision occurred.  The child’s mother, once alerted, looked across the road and saw the child on the road standing still, facing the driveway of her home.  The mother was unable to reach her daughter before the child was struck by the near side of the Toyota Utility, driven by the respondent.  After the incident the child was 3.1 metres from the kerb on the same side as her house.  The child died either instantly or very soon after the collision.

6. The respondent had consumed beer at a friend’s place at about 3 p.m. on that day and when tested after the incident had a blood alcohol concentration of .055%.  A passenger in the truck said that the respondent had driven down Walker Street at about 50 to 55 klms per hour in a 60 klms per hour zone and he said “the windscreen was very dirty from dust and bugs it had been stained all over the windscreen and it was very hard to see out of the windscreen.  At this stage the sun was glaring in on the windscreen and it was very hard to see in front of the truck”.  The passenger said “we were travelling in the left lane of the road and as we were talking and Clinton was looking at me I saw something out of the corner of my eye, I could see something pink in front of the truck”.  The learned sentencing judge was told the passenger said the respondent was still looking at him at the time, and then the truck hit the object he had seen. The passenger did not notice anything unusual about the driving and said the respondent had accelerated through 3rd gear and was changing to 4th gear.

7. In a recorded interview the respondent said his companion started to say something “and I just looked in front of me sort of thing I was just looking at him talking, would have been 5 seconds before that, looking up the road and I didn’t see a thing.  Turned around and didn’t see a thing didn’t see nothing”.  He said they were just cruising along “the sun was coming down it wasn’t too bright it wasn’t the best way to go driving.  Nothing I could do about it but like I say the sun was going down”.  He said there was a bit of a glare but he was just cruising along “I was going well” “It was all clear the roadway”. 

8. The Toyota was mechanically inspected after the incident and this showed that in the opinion of the inspecting officer, the vehicle was in an unsatisfactory mechanical condition and not safe to drive on the road.  The learned sentencing judge was told that even if the brakes were faulty they were not related to the accident and that the only real importance of the inspecting officer concluding that the vehicle was not safe to drive on the road was that the windscreen was dirty and certainly obscured the view of the respondent had he been looking.

9. The respondent made admissions that the brakes were not functioning correctly and that the brake pedal “goes to the floor”.  He had not had the brakes fixed because he was short of money and said “the brakes aren’t that bad I feel otherwise I wouldn’t have been driving it like the brakes would pull you up”.

10. The respondent was not licensed to drive at the time of the incident as two months before the incident his licence had been cancelled for traffic infringements.

11. The grounds on which the Attorney-General bases his appeal are that the learned sentencing judge failed to have sufficient regard to the gravity of the offence, failed to give sufficient weight to the principles of deterrence, placed too much weight on matters personal to the respondent and in all the circumstances the sentence imposed is manifestly inadequate.  He has further submitted that a proper balance of the competing considerations called for the imposition of an actual term of imprisonment as a meaningful deterrent and the recognition of mitigating factors by suspension of part of that term or a recommendation for early parole.

12. The learned sentencing judge in carefully reasoned sentencing comments referred to the matters which I have set out in the above circumstances.  Other matters to which he referred were:- 

1. the fact that the respondent was a relatively inexperienced driver; 

2. the respondent was driving a vehicle with a dirty windscreen close to the speed limit in a built up area, whilst talking to a passenger and knowing that the vehicle’s brakes were “to put it as favourably as I can, not as good as they should have been”;

3. driving whilst unlicensed;

4. the blood alcohol concentration which whilst not impacting on the accident did show some disregard for the respondent’s responsibility  as a driver;

5. that the respondent should have been well aware that the primary duty of any driver is to focus attention on the road ahead and that that failure to take care caused the death of a young child;

6. that there were no other children and no other traffic to give the respondent an additional warning;

7. His Honour’s acceptance that the references tendered to him indicated the respondent’s remorse and the burden of guilt for having caused the death of a young child which he must bear through life;

8. that no sentence could heal the sorrow and loss suffered by the child’s mother;

9. that references showed the respondent had been a useful member of the community, had a good employment history, continued to have support of his family and friends, and had rendered assistance to others in the past and is an honest person;

10. how the accident took place in a position where children and pedestrians might well have been expected;

11. that courts need to consider the deterrent aspect of sentencing to underscore the precious quality of human life;

12. that the respondent’s current employer had work available but only if he was not imprisoned and that it was the respondent’s youth which had been strongly in his favour saying “had it not been so it was extremely possible you would have been dealt with more harshly”

13. In his sentencing remarks his Honour mentioned the respondents “inattention” saying:-

“The references persuade me that your conduct on this occasion will constitute a life long cross for you to bear on your shoulders, knowing that because of your inattention there has been a loss of life involved”

and

[after pronouncing the community service order]

“I want you to reflect upon the pain and suffering you have inflicted upon the mother and the tragedy that arose directly as a consequence of your inattention and perhaps inexperience.”

14. Mr Leask for the respondent submits that these latter references show the learned sentencing judge regarded the dangerous driving as consisting of inattention and submitted that inattention did not justify a custodial sentence.  I do not accept that submission.  If it were momentary inattention, the submission may have some force but the judge did not describe the quality of the inattention.  Furthermore, the prosecutor told the judge that the respondent’s driving on this day was “a course of driving as opposed to momentary inattention” and there is nothing in the transcript to show that his Honour did not act on that submission.  The inattention in my view consisted of a failure to look at the road ahead and I shall shortly return to this aspect.

15. The appellant places considerable emphasis on the fact that not only was the respondent an unlicensed driver but he had had his license cancelled some two months before this offence.  The appellant points to the respondent’s traffic history and his having, on 11 January 1997 disregarded the conditions of his learners permit and driven without the supervision of a licensed person and having driven in a 60 klm per hour area at a speed of between 75 and 90 klms per hour.  Mr Clark for the appellant further points to the respondent having on 15 March 1997 driven through a 60 klm per hour area at a speed of between 90 and 105 klms per hour, and on 17 July 1997 having had his license cancelled because of demerit points.

16. I should say in relation to the blood alcohol concentration that the Crown did not and before this Court, the appellant does not rely on any adverse effect of the respondent’s consumption of alcohol but does submit it is relevant in considering what the appellant submits is the respondent’s disregard for a law designed to protect the community.

17. In my view the most serious aspect of the dangerous driving causing the death of the child was the fact that the respondent was driving without looking at the road ahead.  He was driving “blind” and had turned his head towards his passenger and was conversing with his passenger apparently for a number of seconds before the collision and at the time of the collision.  The respondent told the police 5 seconds which may or may not be accurate.  I prefer to treat it as a number of seconds.  The dirty windscreen is an aggravating factor, but my assessment of what actually happened is that had the respondent chosen to look at the road ahead (as indeed he should have during the whole of the time he was driving along Walker Street) this dirty and smudged windscreen would have impeded his vision and made it less likely that had he been keeping a proper lookout he should in conditions of good visibility have seen the child (who was clearly visible standing on the road surface) in sufficient time to avoid a collision.

His Honour treated the respondent’s youth as an important factor in determining the sentence.

18. In R v Price [1978] Q.R. 68 the Court of Criminal Appeal held that when sentencing, a court must take into consideration the fact that it is undesirable to send a young person to gaol.  In that case a sentence of 3 months imprisonment had been imposed on a charge of unlawfully using a motor vehicle.  The applicant was a single man 18 years of age who had pleaded guilty.  He had no previous convictions and otherwise was of good character.  At p. 70 Wanstall CJ with whose reasons the other members of the court agreed approved the following earlier statement by the Court of Criminal Appeal:-

“This Court has laid down in measured terms in a number of cases in recent years the principles which ought to be applied in sentencing juvenile offenders, and in particular has emphasised the significance of the legislative policy designed to achieve the rehabilitation of young offenders, if this appears to be at all possible.”

19. The court also adopted the views of the Chief Justice of Tasmania, Sir Stanley Burbury which he had expressed in Lahey v Sanderson [1959] Tas.S.R. 17 when the learned Chief Justice said:-

“The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed.  There has accordingly been a universal acceptance by the courts in England, Australia and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed.  It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility.  With that I respectfully agree.”

20. The principle of R v Price has been adopted in the Penalties and Sentences Act.

21. In addition to the present respondent having been aged only 18 years, and being of good character there is the matter of his having pleaded guilty in a timely manner and saved the community the cost of a trial for which he was entitled to receive some benefit.  I have already set out the matters his Honour considered in sentencing the respondent. 

22. The question remains - did the learned sentencing judge err in the exercise of his sentencing discretion in imposing the penalties which he did, or if he made no discernible error, are the penalties imposed manifestly low such that this Court must interfere?

23. This appeal is to be dealt in accordance with this Court’s views of the level of sentences into which the present offence fits and we cannot allow our personal views to override those views (see Calder (1986) 22 A.Crim. R. 62 at 67 per Connolly J.)

24. At the sentencing in the present case the learned Crown Prosecutor submitted that “the range of penalty is in the order of 18 months to two years as a head sentence” and that his Honour could reflect the plea of guilty and the mitigating features by an early recommendation.

25. The Prosecution tendered a document (Exhibit 5) being a schedule, apparently prepared in the office of the Director of Prosecutions for “DANGEROUS DRIVING CAUSING DEATH OR GBH - NO ALCOHOL”.

26. The schedule contains cases dealt decided in this Court and the Court of Criminal Appeal and is divided into cases where the penalty ranged from 2-3 years imprisonment down to non-custodial sentences which latter category ranged from “COMMUNITY SERVICE” through “FINED” to “SUPERVISION”.

27. The Prosecutor did not refer his Honour to any particular case in the schedule.

28. Defence counsel, Mr Durward, did refer his Honour to the cases in the schedule Exhibit 5 - these were cases where 1-2 years imprisonment had been imposed (Woods, Gartside and Stutchbury) and where up to 1 years imprisonment had been imposed (Nowraty and Fatseas and Brook) and to the only case in the schedule where community service had been ordered - Brown.

29. Mr Durward submitted that a non-custodial order should be made but that if his Honour were minded to imprison then any sentence of imprisonment should be suspended.

30. Before this Court the Attorney-General has relied on further cases R v Dee - C.A. 27/85 R v Smith - Attorney-General of Queensland - C.A. 80/899 and R v Atkinson - Attorney-General of Queensland C.A. 459/96.

31. The cases in the schedule Exhibit 5 to which his Honour was referred show the following essential matters as taken from the schedule:-

1. M.J. WOODS C.A. 368/90 - Judgment 4/3/91 - Attorney-General’s Appeal - a not guilty plea - convicted at trial - 19 years old - no significant prior criminal history - alcohol not involved - satisfactory employment history - Woods drove dangerously and recklessly “both with regard to the speed at which he was travelling and the manner of his driving involving the passing of another vehicle - drove vehicle with 5 adults and a baby in it - licensed to drive an automatic vehicle and vehicle was manual - it was dark and only one headlight was working - no remorse shown - speed ranged between 80 and 120 klms per hours in 60 klms per hour zone - looked at his girl friend at time of accident which resulted in  another vehicle being struck and torn in half killing passenger in that vehicle - 240 hours community service and licence disqualification for 3 years set aside - in lieu 2 years imprisonment with recommendation for parole after 8 months - licence disqualification 3 years from date of Court of Criminal Appeal judgment.  Time served under community order taken into account.

2. GARTSIDE C.A. 374/94 - Judgment 15/11/94

21 year old driver - licensed for approximately 6 months - no previous criminal history -not guilty plea - convicted at trial - 18 months imprisonment - 3 years licence disqualification - drove sedan on road which was divided by median strip.

- 3 passengers in car - speed limit 70 klms per hour - drove at speed in excess of  80 klms per hour - skylarking by causing sedan to zigzag 4 or 5 times across lanes - lost control - sedan mounted median strip and collided with on-coming vehicles - driver of one vehicle killed - skylarking sole cause of accident.

The note in the schedule Exhibit 5 shows that Pincus JA said - “In my view there is an important distinction between what might be described as accidental bad driving ... and deliberate dangerous driving ... .”   I have seen a copy of the Court of Appeal judgment which described the sentence as “at the very top of the range that might appropriately have been given”.

3. R.J. STUTCHBURY C.A. 196/89 - Judgment 31/8/89

Attorney-General’s Appeal - not guilty plea - convicted - accident involved death of respondent’s companion passenger - drove at very high speed over distance of 3.9 klms per hour of narrow roadway with a number of curves in it - lost control of vehicle in an area of roadway containing loose gravel and skidded onto the left-hand side of the road - 28 year old - no criminal history - good work record - remorseful - deciding factor to impose custodial sentence - “one cannot in the end get away from the length of time over which the course of dangerous driving was persisted in, the undoubtedly very high speeds at which the respondent drove and the great potential danger to others in the roadway in the area which would have resulted from his conduct.  In short the case itself is a culpable one and must be so characterised.”  Fine of $3,000 set aside and sentence of 12 months imposed with recommendation for parole after 3 months.

4. R v NOWRATY C.A. 371/89 - Judgment 26/2/90

- Not guilty plea - applicant aged 40 years - lost employment - good background with no  previous convictions - married with young child - drove on Gympie Road for 50-80 metres oblivious to red light for 5 seconds or more - hit deceased who was crossing a green walk signal.  Applicant’s attention diverted momentarily by another inconsiderate driver at whom he had been cursing - originally sentenced to 6 months imprisonment and disqualified from holding a drivers licence for 18 months - appeal allowed - sentence set aside (by the time of hearing applicant had served from 21/11 - 26/1 in custody and been released on home detention.  New term of imprisonment expiring on that day ordered - disqualification to stand.

5. FATSEAS L. and BROOK B.  C.A. 255 and 258/95

- Judgment 17 August 1995 - both applicants pleaded not guilty - both applicants entered an intersection in Fortitude Valley from different directions and collided which caused  Fatseas car to collide with window of cafe on the corner where person standing was killed.  The circumstances of the collision were such that the jury were entitled to conclude that the applicant Fatseas, on the view most favourable to him, entered the intersection as the light was on the verge of changing from amber to red.  It was clearer, in the context of the whole of the evidence that the jury was entitled to infer that Brook entered it against a red light.

Fatseas was 27 years old - no criminal history - respectable background - history of traffic offences - at time of accident part time employment whilst studying - psychiatric report suggested he suffered adversely after the accident.

Brook was 62 years old - one traffic conviction - had worked as a carpenter all his life.

Sentences of 2 years imprisonment with no recommendation for early release were set aside - “Period of 2 months imprisonment which each of applicants has presently served is an appropriate reflection of the way in which they ought to have been dealt with”.  Each disqualified from holding or obtaining a drivers license for 18 months.

6. A.J. BROWN C.A. 167/93 - Judgment 4/8/93

- Not guilty plea - Attorney-Generals appeal based on ground that conviction should have been ordered.

- Brown did not deliberately engage in reckless driving - failed to slow down on warning signs and continued to drive up a road where speed was excessive and dangerous.  Another vehicle entered onto a junction in breach of the right of way rule and into the path of Brown’s oncoming vehicle .

- 23 year old - good employment record - no criminal history.

- Brown ordered to serve 200 hours community service and disqualified for 3 years from holding or obtaining a drivers licence.  The appeal - based on grounds that a conviction should have been ordered was dismissed.

32. All of the above cases are in my view substantially different from the present case and (save for Brown) more serious.  In the last case a non-custodial penalty was imposed.  These cases; on which the learned sentencing judge was asked to rely in sentencing the respondent show the appropriate sentence for the present respondent was a range which in my view was from a sentence of imprisonment for a short term, either wholly or partly suspended down to non-custodial penalties especially community based orders.

33. The cases also show that for more serious cases of dangerous driving causing death the periods of licence disqualification were substantially less than the disqualification imposed on the present respondent.

34. To the above cases, I would add the decision of this Court in R v D.B. Atkinson; ex parte Attorney-General of Queensland - appellant (C.A. 459/96 - judgment delivered 20/12/96) - his Honour was not referred to this decision.  I mention it because of absence of any look out by Atkinson.

35. Atkinson who pleaded guilty had been sentenced to 2 months imprisonment for dangerous driving causing death.  He had been driving a 4 wheel drive vehicle along a beach.  A tarpaulin was attached to the rear of the vehicle and a friend named Lee was riding on the tarpaulin whilst Atkinson drove along the beach.  During this procedure the four wheel drive ran over and killed a woman lying on a towel near the waters edge.  Atkinson failed to see her when he should have - he was driving along on wet sand “looking at Billy on the tarp and I was just looking back and forward”.   The beach was being used by a number of persons and for different purposes.

36. Atkinson was 26 years old at the time - he had no relevant criminal history and had not been in gaol before.  He had a steady work history and appeared generally of good character.  He was in a stable and long term relationship and had strong family support. The case was one of failing to keep a look out.

37. Atkinson was looking in the rear vision mirror watching his tow and not looking ahead of him.  There was “no topographical reason why, if he had been keeping a look out he would not have seen the woman”.  To this extent the cases of Atkinson and the present case are quite similar.  Although as Davies JA said - public deterrence was “not as important a factor as in the more common situation of road death” his Honour recognised the constraints placed on this Court in Attorney-General’s appeals (re Melano; ex parte Attorney-General [1995] 2 Qd.R. 186 at 190) and declined to interfere with the sentence.

38. The above 6 cases to which his Honour was referred differ in varying degrees from the instant case - all save Brown are in my view worse cases of dangerous driving than the present case.  Atkinson, supports the Attorney-General’s present appeal because the present case is one of dangerous driving causing death on a public road and therefore one in which the aspect of public deterrence was a more important factor.  Atkinson was not cited to the learned sentencing judge and there is an element of double jeopardy caused by the Crown relying on it now in seeking to justify a submission that the respondent now be imprisoned see Tricklebank [1994] 1 Qd.R. 330 at 338; Everett and Phillips v The Queen (1994) 68 A.L.J.R. 875, 879 at 882 and R v Pope; Attorney-General of Queensland (C.A. 271/96 - judgment 30/8/96).  The present case does not have exceptional circumstances justifying the appellant’s reliance on that case (see 68 A.L.J.R. at p. 879 where the High Court approved a passage in the judgment of King CJ. in R v Wilton (1981) 28 S.A.S.R. at 267-268. 

39. Leaving aside the decision in Atkinson there is one major difference between this case and the above 6 and that is that in each of the 6 cases the accused pleaded not guilty and went to trial.

40. That in my view was an important factor and it meant that in the present case his Honour when sentencing was really obliged to reflect some benefit for the respondent.  It seems to me that he did so by imposing the maximum term for probation, the maximum hours for community service and a quite long licence disqualification period - 5 years - a period which, as his Honour observed, he assumed will be of some significance and one which may well impact on the respondent’s employment prospects from time to time.  His Honour recorded a conviction.

41. I find it hardly surprising, given the cases as comparative sentences to which the Crown referred his Honour, that his Honour should have reached the result he did.

42. In my view, in the present case the range of sentences which the learned sentencing judge would have been entitled to impose was from imprisonment for a short term wholly or partly suspended down to community based orders as well as disqualification from holding a licence and recording of a conviction.  The choices he made were in my view within the purview of a proper sentencing discretion and especially so given the comparative sentences to which he was referred. 

43. The death of a human being and especially the death of a child is a tragic event and no doubt particularly so for the mother of the child, in this case.  I have read her moving and touching victim impact statement.  In her particular circumstance she has suffered a grievous loss. Death in circumstances such as existed in the present case can excite a desire to punish the offender severely but simply because dangerous driving causes a death it does not automatically follow that a term of imprisonment must be imposed.  Nevertheless at the end of the day the punishment imposed must be proportional to and reflect the criminality of the respondent’s conduct and must be objectively and dispassionately imposed.  I have come to the conclusion in this case that the orders made were within the exercise of a proper sentencing discretion and the learned sentencing judge properly reflected the criminality of the respondent’s conduct taking into account the victim impact statement of Mrs Widt, the respondent’s  youth, his prior lack of a criminal history, his timely plea of guilty and other matters to which his Honour have referred including the need for deterrence to underscore the precious quality of human life.

44. The appellant has failed to satisfy me that the learned sentencing judge erred in principle either because an error is discernible or demonstrated by manifest inadequacy.  (R v Melano; ex parte Attorney-General [1995] 2 Qd.R. 186.

45. I would dismiss the appeal.