The Queen v Booth[1998] QCA 473

COURT OF APPEAL

McMURDO P

McPHERSON JA

MUIR J

CA No 287 of 1998

THE QUEEN

v.

DAVID DONALD BROOK BOOTH Applicant

BRISBANE

DATE 27/10/98

JUDGMENT

McPHERSON JA:  On 29 July 1998 the applicant was convicted in the Circuit Court at Mount Isa on one count of dangerous driving causing grievous bodily harm with a circumstance of aggravation, being that he was under the influence of alcohol, and of further offences of driving under the influence of liquor and driving without being licensed. 

He was sentenced to imprisonment for six years on the first count and to imprisonment for six months to be served concurrently in respect of each of the other two offences.  Convictions were recorded and he was disqualified for two years from driving a motor vehicle.

His application to extend the time for applying for leave to appeal against sentence bears the date 10 September 1998, although the material in support of it claims it was apparently filed and served on 3 September 1998.  The date last mentioned appears to be the correct one.

The period of delay is therefore about one week or so.  The explanation given for it is that the applicant's solicitors declined to lodge an appeal on his behalf, and so advised him by letter dated only 10 August 1998. 

Because the applicant was in custody in Mount Isa before being transferred by road to Townsville, he says he was unable to obtain legal advice before the time for appealing expired on 28 August.  The application was lodged by him personally as soon as possible. 

Curiously, however, the notice of application for leave to appeal against sentence bears date 1 September 1998.  The explanation given may therefore leave some matters not accounted for, but I will provisionally assume it would suffice if the application for leave to appeal against sentence itself has merit.

The circumstances of the offence are that on 3 April 1996 the applicant spent the day drinking at the Burketown Hotel.  By that evening, or when tested shortly after the accident, he had a blood alcohol of .175 per cent, which as the learned sentencing judge said, is a very high reading.

Among the others present at the hotel on that occasion were the two Yanner brothers and some others who are identified in the material.  There was a history of animosity between those persons and the applicant.  On leaving the hotel he was insulted and may have been assaulted.  In consequence, he got into his car, started it, did a U-turn, and then drove it on to the footpath and into a group of people outside the hotel.  The force of the driving was sufficiently powerful to knock out the concrete-based posts of the hotel and to knock down the awning. 

The only person seriously injured was Mr Ahmat, who was a man aged 45 years at that time.  He was injured so badly his leg had later to be amputated after some six months or so.  In consequence he suffered serious pain, stress and trauma, and lost lucrative employment in the construction industry.

After the applicant had driven in this way on to the footpath, the Yanner brothers dragged him out of the car and beat him.  He sustained extensive bruising to face, arms, back and kidneys.  That was a factor capable of being taken into account in sentencing as going, to some extent, in mitigation, but it did not go very far when compared to the injuries sustained by Mr Ahmat, who is maimed for life.

Nevertheless, it is said that the sentence of six years was excessive and that the case is not to be compared with any others, including R v. Sanderson (CA 134 of 1998, 15 July 1998) where a sentence of six and a half years, with a recommendation for parole after two and three-quarter years, was imposed. The offender there was also drunk in charge and unlicensed.  She drove her car and, in doing so, ran off the road and into a power pole killing two passengers. 

The extent of the consequences is a factor to be borne in mind in all these cases, or most of them, even if the consequences are often partly a matter of chance.  But the critical feature here, to my mind, is that the applicant deliberately used his motor vehicle as a weapon against vulnerable and unprotected human flesh and bone, and in doing so must, as the learned sentencing judge held, have driven at some speed in knocking out the concrete-based posts as he did.  So far as can be gathered, Mr Ahmat was not even among the group at whom the applicant was enraged, but he was unfortunately the one who suffered as a result of this extraordinary action. 

In these circumstances, the applicant's remorse and his plea of guilty, which was rather late in being entered, does not count for very much by way of mitigation.  I consider that the prospects of success on appeal are slight and not sufficient to justify even the comparatively short extension of time that would be required here. 

A sentence of imprisonment for six years was well within the limits of the proper penalty and, indeed, it was accepted by the applicant's counsel at the hearing as being within those limits.  The maximum penalty at the time the offence was committed in 1996 was 14 years, having regard to the circumstance of aggravation involved.

It may be noted that this is the applicant's second conviction for doing grievous bodily harm, the last in 1987 having attracted a sentence of imprisonment for five years with a recommendation for parole after 14 months.  That is a factor that militated against a recommendation for parole in this case, which, in any event, his Honour said that he discounted because he had slightly reduced the head sentence he was imposing.

When all these considerations are taken into account, it does not seem to me that there is a sufficient prospect of success on an appeal against sentence to justify an extension of time in this case.  I would accordingly dismiss the application to extend time.

THE PRESIDENT:  I agree that the application for extension of time should be refused for the reasons given by Mr Justice McPherson.

MUIR J:  I also agree and for the reasons given by Mr Justice McPherson.

THE PRESIDENT:  The order is the application for extension of time within which to apply for leave to appeal against sentence is refused.