R v Kelly[1999] QCA 296

COURT OF APPEAL

McPHERSON JA

BYRNE J

WHITE J

CA No 183 of 1999

THE QUEEN

v.

BRETT ANDREW KELLY Applicant

BRISBANE

DATE 29/07/99

JUDGMENT

McPHERSON JA:  The applicant for leave to appeal in this matter is Brett Andrew Kelly.  He was convicted on his own plea of guilty in the Supreme Court at Rockhampton of the offences of manslaughter and unlawful use of a motor vehicle.

The sentences imposed were, in respect of the manslaughter, imprisonment for eight years and, in respect of the unlawful use offence, two years imprisonment, together with a disqualification from holding or obtaining a driver's licence.  The disqualification was not limited in time but was absolute.

The circumstances of the offence are these.  On 25 November 1995 at about 5.30 on a Saturday, a bakery van was being loaded in Gladstone behind the shop.  The applicant, who had been out the whole of the night as far as one can see, arrived at the van, or saw it being loaded and that it was unattended. He got into it and drove off.

A customer of the bakery followed the van as it went down the road and at the same time called the police on his mobile telephone.  He noticed that the vehicle driven by the applicant was "wandering" over the road, and that it was travelling at speed which at times reached 130 kilometres per hour.

In all, before the fatal collision that led to the applicant's being charged with manslaughter, the applicant drove the van for some 23 kilometres or more. 

A marked police vehicle responded to the call and pursued the van, driving up to it with the lights of the police car and the siren activated.  The police officer in the front passenger seat made signs which clearly indicated that the applicant should pull over to the side of the road and stop.  The applicant took no notice of this action.  While being followed in this way he drove the vehicle on to the incorrect side of the road and into the path of an oncoming car.  The driver of that vehicle had to swerve quickly in order to avoid a collision.  A kilometre or so later on, the applicant again drove on to the incorrect side of the road, this time crossing over double white lines and into the path of another oncoming vehicle, which was forced to pull up on the shoulder of the road in order to avoid collision.

After that incident, the police attempted to overtake the vehicle driven by the applicant, but he blocked that manoeuvre by driving on to the incorrect side of the road.  When the police desisted from this course of action, the applicant moved back on to the correct side of the road.  The speed of the vehicle during these attempts to bring it to a halt was between about 70 and 100 km/h.

Some two and half kilometres later, while the pursuit was still in progress, the two vehicles were travelling along a straight section of road which led to the Larcom Creek Bridge.  Approaching in the opposite direction was a vehicle driven by Harold Arthur Diplock, with a passenger, who was a friend of his named Mr Guley.

On arriving at the bridge the applicant drove on to his incorrect side of the road to the extent of being two-thirds on that side.  Mr Diplock, who was coming in the opposite direction, tried to avoid him by moving to his extreme left.  His vehicle was already on the bridge and, despite his efforts to escape the vehicle driven by the applicant, a collision occurred in which Mr Diplock's vehicle was trapped against the guard rails.  The applicant had by then passed completely on to the incorrect side of the road and collided head on with the other vehicle killing Mr Diplock in the process. 

Mr Diplocks's passenger, Mr Guley, suffered some injuries, but was discharged from hospital within a reasonably short time.

The applicant himself sustained injury of some kind, and was taken to hospital where a sample of his blood demonstrated that he had a blood alcohol level of .187 per cent.

The day on which these events occurred was, as I said, 25 November 1995.  Very early in January 1996 - I think it might have been the 2nd or 3rd of that month, the applicant discharged himself from hospital and flew out of the country to South Africa, from which he was ultimately extradited some years later.  He had at that time not been charged by the police with any offence, but I must say that, if the question were relevant, I would have some difficulty in believing that the applicant was not aware of the prospect of some charge against him arising out of the accident.  It should, however, be said that he told a nurse, who was attending him, that he believed he had been the passenger in the vehicle that was involved in the accident.

The personal circumstances of the applicant are that he was born in South Africa on 9 July 1973, and came to this country with his parents when he was aged 11. 

He was 22 years of age at the time of the offences and 25 years of age at the time of sentence.  The delay in sentencing him was due substantially, if not entirely, to the fact that he was in South Africa and it was necessary for him to be extradited.  He co-operated with that process, but of course it may be observed that it would have cost the community a good deal to put the extradition process into force and to bring him back by air.  On that occasion, as I understand it, he was accompanied by a police officer, as is the practice in cases of that kind.

He comes from a good family.  His parents are both teachers at a grammar school, at which he himself was educated for the last two years of his school years.  Unfortunately, he seems to have taken to drinking at about the time he left school, or soon afterwards, and he did not behave as one would expect a young man, with the advantages that he had, to conduct himself.

He has some criminal history, in the sense that there was a conviction in November 1992 for using obscene language; and, more relevantly, another conviction on 21 December 1994 for the offences of unlawfully using a motor vehicle and stealing.  On that occasion, he was sentenced to probation for 18 months, together with 60 hours community service, and ordered to make restitution of $300.  No conviction was recorded.  It should be pointed out that, at the time this offence was committed in November 1995, he was still undergoing probation and the offence was committed during that period.

It was submitted to us that the learned sentencing Judge failed adequately to take into account matters in mitigation, and that the sentence was manifestly excessive.  Mitigating factors that were referred to are that the appellant was only 22 years of age at the time of the offence; and that he had at that time been working and saving money in order to return to South Africa to marry a young woman he had met on a previous working holiday in South Africa.

When he, as I would see it, skipped the country and went back there, he married the young woman and worked in South Africa throughout the period before he was brought back here.  He also became an active member of the Methodist church and was involved in various meetings of the church and in running a youth group.  What is more important for the present purposes is that his membership of that church has resulted, according to all the evidence which there is no reason to doubt, has never again consumed liquor, even though, in some instances, the temptation for him to do so might be thought to have been strong.

The appellant has thus taken steps to rehabilitate himself, and during his period in custody he has completed a number of courses and taken an active part in groups that are designed to encourage mutual assistance and reform among prisoners.  A number of character references were tendered on the appellant's behalf.  Most of them come from individuals in South Africa who speak very highly of the applicant's efforts to rehabilitate himself, and of his good character and participation in community activities in the church and otherwise.

It is also in his favour that he entered an early plea of guilty; but, as I must remark again, only after he had been extradited from South Africa to Queensland.  He has, there is no doubt, shown genuine remorse for his actions.  It was submitted to us that, although the appellant was convicted of manslaughter, the head sentence was much higher than that imposed in some other cases, notably that of Vessy.

The dangerous driving causing death in that case was, taking into account the previous record of the offender there, more serious than that in this instance.  The fact is, however, that, once it is accepted that the offence of manslaughter was charged and that the applicant pleaded guilty to it, it takes this case into a different category for sentencing purposes, irrespective of what may be the precise conduct involved.  The offence here of causing death by dangerous driving in circumstances in which alcohol is involved is one that attracts a maximum sentence of 14 years, whereas in the case of manslaughter the maximum is life imprisonment.  In addition of course, it must be borne in mind that another offence was also committed here, which was that of unlawfully using the motor vehicle.

Manslaughter it was said, in R v. Whiting in 1995:

"is above all an offence in which particular circumstances vary so much that it is difficult and perhaps undesirable to try to generalise in advance about the appropriate sentence to be imposed."

That being so, it makes the task of attempting to upset the head sentence in this case much more difficult than perhaps it might otherwise be where there was an identifiable or uniform tariff for offences of a particular kind.  In any event, we were also referred to a case of R v. Burton, where the offender was convicted of manslaughter, and in which a penalty of imprisonment for 10 years was imposed, although in circumstances in which it must be said the applicant in that case had a much more serious history of previous offences and was an older man than the applicant.

Factors which, on the other hand, tend to weigh against the applicant in this case and so increase the sentence against him, are that he was on probation at the time of the offence; and that the offence for which he was on probation was that of unlawful use, which he committed again in this instance, and that the vehicle with which the death was caused was stolen or being unlawfully used.

The circumstances of this case are particularly serious.  In particular it must be recalled that, on at least three occasions, the applicant went on to the wrong side of the road in the face of oncoming traffic in circumstances that tend to make one wonder not only why he did it, but whether he was not perhaps engaging in some form of unusually reckless behaviour involving a challenge to other drivers.  The facts that weigh heavily against him, perhaps more than others, are his utter disregard of police attempts to persuade him to pull over and stop as well as his blood alcohol level at the time.

In the end what he did killed a kindly, inoffensive, and hard-working man.  Mr Diplock was one of those who had worked all his life, apparently on the wharf, and he was on his way to work early in the morning with a fellow waterside worker when he was killed.

The applicant has certainly, it is true, shown himself capable of rehabilitation; but, on the other side of the record, Mr Diplock was recklessly killed and deprived of all chance of further enjoyment of his life.  His death has, needless to say, caused much sadness amongst his friends and relatives.

There is a victim impact statement from, among others, his stepson, who recounts the loss that he feels through the death of his stepfather.  Mr Diplock had apparently married the stepson's mother when the lad was quite young, and he took the place of the absent father, in a way which, regrettably, is not always apparent in some of the other cases we see here.  He became a close friend of the stepson, and now he has been taken from him.

The applicant's capacity for rehabilitation in this case was, I suppose one might say, facilitated by the fact that the applicant left hospital and went to another country before he could be charged and taken into custody.  In that way he created for himself an opportunity of demonstrating his rehabilitative intention which is not open to some offenders who stay to face the consequences of their actions.

All matters considered, and bearing in mind the rehabilitation of the offender is as much a benefit to himself as to everyone else, I do not see anything, either as regards the head sentence imposed here or the absence of an early recommendation for parole, that calls for intervention by this Court, either on the ground that his Honour's sentence was manifestly excessive, or that in some other respect he erred in the exercise of his sentencing discretion.  Accordingly I would dismiss the application for leave to appeal against sentence.

BYRNE J:  I agree.

WHITE J:  I agree.

McPHERSON JA:  The order of the Court is that the application for leave to appeal is dismissed.