The Queen v Lennon[1999] QCA 192

COURT OF APPEAL

THOMAS JA

DERRINGTON J

CHESTERMAN J

CA No 26 of 1999

R

v

LENNON, Geoffrey Norman Applicant

BRISBANE

26 MAY 1999

JUDGMENT

It was a condition of his driving licence that he wear spectacles, but he did not do so. He has no recollection of the drive from the hotel to the accident scene.

Miss Buckley suffered a complicated fracture to her right forearm, a comminuted fracture of her left patella and a fracture of her left ankle. She required extensive orthopaedic treatment and has been left with residual pain and disability.

She sustained serious lacerations to her forehead, a fractured left collar bone and ribs and serious crush injuries to her chest. She has scarring to her face and chest and knee and has developed painful recurring migraines.

She was a physiotherapist who had been unable to return to full-time private practice. She suffers a high level of emotional distress and anxiety. Her marriage has suffered considerable strain.

The offence was out of character for the applicant. He has no prior criminal convictions and only three traffic violations. There are two for speeding, one in 1991 and one in 1993.

In 1994 he drove when the concentration of alcohol in his blood exceeded .05 per cent. It was .052 per cent. For that offence he was disqualified from driving for one month and fined $100. He is 46 years of age being born on 7 September 1953. His wife had left him about a month before the offence taking their children with her. The applicant was upset by the dissolution of his marriage which was the reason for his excessive consumption of alcohol.

The learned sentencing Judge remarked that the case was one of the most serious examples of dangerous driving that he had experienced. His Honour had regard to the level of intoxication; the number of warnings given to the applicant, one that he ought not to be driving at all, and the other that he had been driving on the wrong side of the road; that the dangerous driving occurred over a distance of about eight kilometres; the applicant's failure to wear spectacles; the extent of Miss Buckley's injuries and what His Honour described as the applicant's "completely unacceptable" conduct towards the ambulance officers.

His Honour could detect nothing in the applicant's favour except his early plea of guilty, his apparent remorse and his relatively minor traffic history. These factors led His Honour to make the recommendation for early parole.

The applicant submits that the sentence is manifestly excessive when compared with the penalties imposed in other cases for similar offences.

The Court has been supplied with copies of judgments in other like cases. I have looked at the decisions of Rahn, Sanderson, Porter, Byrne, Sheppard, Clauss, Ekstrom and Hayes.

The last two mentioned cases were appeals against sentences imposed for dangerous driving causing grievous-bodily harm an offence of dangerous driving causing death and imposed instead a sentence of nine years.

Vessey was intoxicated. He had a blood alcohol concentration in excess of .2 per cent. He drove on the wrong side of the road for about 150 metres, turned into a street where his vehicle gave a misleading trafficator indication of what he intended to do and drove through a give way sign colliding with the victim's vehicle. He had a very bad history of driving under the influence of liquor with high blood alcohol concentrations. He had two previous convictions for dangerous driving.

In allowing the appeal the Court remarked that Sheppard had decided that Judges should not always consider themselves fettered by sentences which had previously been imposed for a particular offence, but should impose sentences which were appropriate in the circumstances of the particular case.

In Sheppard, Mr Justice Pincus said:

"It is not necessarily helpful to talk of a range for dangerous driving causing death or grievous bodily harm. The circumstances may vary greatly from one case to another. For example, with respect to the age of the offender, the extent of injury done, whether there had been previous offences in respect to driving offences and, particularly, as to the character of the driving itself. It was suggested in argument before us that a range of four to five years had been adopted. If that is so it plainly cannot be justified, not only because of the wide variability of the circumstances of these offences, but also because its actual maximum is, in a case such as the present, 14 years."

These remarks appear to have been endorsed in Vessey. The consequence is that a sentencing Court should not concentrate upon a discernible range of comparable sentences, but should focus upon the circumstances of the particular case remembering the seriousness of the offence and such mitigating factors, or explanations as there may be.

Nevertheless there has to be some consistency in sentences imposed for like offences where the circumstances are broadly similar. This was a bad case. Its dominant features were the level of intoxication, the prolonged dangerous driving and rejection of two explicit warnings.

The learned sentencing Judge was entitled to take a serious view of it. Vessey and Sheppard make it clear that the sentencing discretion in such cases is not to be artificially constrained within a preconceived range

Despite this the sentence imposed is substantially greater than for other cases of dangerous driving causing grievous bodily harm and more serious than all but one of the instances of dangerous driving causing death. The only cases in which a sentence greater than 6 years was imposed, Vessey and Slater, were both instances of an accused who had a substantial criminal history including dangerous driving and/or multiple drink/driving offences.

The applicant does not have Vessey's or Slater's appalling history. The dangerous driving in this case was not deliberate but the result of excessive intoxication. Intentional aggressive or dangerous driving appears from the cases to be a factor tending to a heavier penalty.

THOMAS JA: The order of the Court will be the application is allowed; the sentence below is set aside and replaced with a sentence of six years' imprisonment with a disqualification from holding a driver's licence for a period of 10 years.