Attorney-General v Purcell[1999] QCA 316

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C A No 192 of 1999

Brisbane

THE QUEEN

v

JAMES WILLIAM PURCELL

Respondent

EX PARTE:  ATTORNEY-GENERAL OF QUEENSLAND

Appellant

McMurdo P

Thomas JA

Derrington J

Judgment delivered 17 August 1999

Joint reasons for judgment of McMurdo P and Thomas JA, separate concurring reasons of Derrington J

THE ATTORNEY-GENERAL'S APPEAL AGAINST SENTENCE IS ALLOWED.

THE SENTENCE IMPOSED BELOW IS SET ASIDE AND IN LIEU THEREOF IT IS ORDERED THAT THE RESPONDENT BE IMPRISONED FOR THREE YEARS WITH A RECOMMENDATION THAT HE BE CONSIDERED ELIGIBLE FOR RELEASE ON PAROLE AFTER SERVING 12 MONTHS OF THAT SENTENCE.

IT IS ORDERED THAT THE RESPONDENT BE DISQUALIFIED FROM HOLDING OR OBTAINING A DRIVER'S LICENCE FOR THREE YEARS.

JOINT REASONS FOR JUDGMENT - McMURDO P AND THOMAS JA

Judgment delivered 17 August 1999

1. The respondent pleaded guilty in the District Court at Rockhampton on 14 May 1999 to one count of dangerous operation of a vehicle causing grievous bodily harm with a circumstance of aggravation that he was adversely affected by alcohol and the concentration of alcohol in the blood exceeded 150 mg of alcohol per 100 mg of blood.  In fact, he had a blood alcohol concentration of 0.174 per cent.  This offence occurred on 30 January 1999.  The respondent was sentenced to two years imprisonment with a recommendation for release on parole after six months and he was disqualified from holding or obtaining a driver's licence for two and a half years.

2. The respondent was 24 years of age and had no prior criminal history, although, significantly,  he had been charged under the Traffic Act 1949 with driving a vehicle with a prescribed concentration of alcohol of 0.103 per cent on 29 November 1998, and was on bail at the time he committed this offence; on 9 March 1999 he was fined $500 and disqualified from holding or obtaining a driver's licence for three months.

3. The appellant, the Attorney-General of Queensland, claims the sentence imposed was manifestly inadequate.

4. The facts are as follows.  The complainant was a 19 year old motor mechanic and friend of the respondent.  At about 11.00 a.m. on 30 January 1999 the complainant and respondent left Blackwater where the respondent worked; they travelled to Rockhampton in the complainant's old Holden Gemini sedan, registered only the day before, to buy a new gearbox for the car.  They drank at the Savoy Hotel in Rockhampton for about four hours from 3.00 p.m.  The complainant had no recollection from about 7.30 p.m. until he awoke in hospital later that night.  At about 8.30 p.m. the respondent and the complainant visited the respondent's parents' home.  The respondent's stepmother noticed that he appeared "pretty seriously drunk"; as the respondent and complainant set off to drive to the home of the respondent's sister his stepmother said, "Don't drink and drive.  Dad'll be home soon."  Regrettably, the respondent took no notice and drove off like "a stupid teenager" spinning the tyres in the driveway.  At about 9.00 p.m., after visiting his sister's address, the respondent accelerated heavily down Water Street, crossing its intersection with Peter Street at about 90 kph.  He overtook another vehicle in the intersection and crossed into Lakes Creek Road, a major thoroughfare, at about 100 kph, ignoring a stop sign.  The vehicle became airborne and nose-dived into the railway line which ran parallel to Lakes Creek Road.  The dangerous driving occurred over a relatively short distance of about 300 metres and within a short time frame.

5. The complainant was thrown through the windscreen and onto the bonnet; he suffered a fractured jaw in three places, a fractured tibia and fibula in the right leg, a fractured left ankle and toes, torn tendons and muscles in the left leg, laceration to the right elbow, forearm and upper arm.  He had a plate fitted in his left ankle; a plate, pin and bolt inserted in his right leg and his jaw was wired.  He was hospitalised for seven days in Rockhampton and then transferred to Brisbane for six days before returning to Rockhampton for a further three days.  He was bedridden for the first week, in a wheelchair for about 8 weeks and was still taking pain killing medication at the time of sentence.  The complainant hopes to be able to complete his apprenticeship as a motor mechanic, although with some disruption, difficulty and discomfort.  His sporting and social activities, including tae kwon-do, golf and fishing having ceased or been severely curtailed.

6. The respondent has lived in a de facto relationship for about six years and has a child aged four and a second child due to be born on 5 August 1999.  His partner currently resides in Perth with her family; the respondent intends, when it becomes possible, to travel to Perth to live with his family and work as a deckhand on a crayfish trawler with his partner's uncle.

7. After leaving school he joined the navy for six years, completing a trade as an hydraulics fitter.  He left the navy after injuring his knee and then returned to Gladstone where he worked as an hydraulics fitter.  At the time of the accident he was working as an hydraulics fitter in Blackwater.  He will qualify as an A-grade electrician with a further 12 months training.  He, too, was injured in the accident, suffering an injured lip and tongue, a broken bone in the left hand, dislocated left collar bone, lacerations to elbow and legs, swollen left ankle, bruised chest, abdomen and back.  He was genuinely remorseful and visited the complainant, his friend, in hospital.  A number of references were tendered on his behalf.

8. The victim impact statement demonstrated that at sentence the complainant still had considerable physical disabilities which had not then resolved.

9. The maximum penalty for this offence is 14 years imprisonment.  As this is an Attorney-General's appeal, it is necessary that the Attorney show error demonstrated by manifest inadequacy.^[1]  It is helpful to review the comparable sentences in order to determine this issue.

10. In R v de Rooy,^[2] de Rooy pleaded guilty to dangerous driving causing grievous bodily harm with a circumstances of aggravation.  He was sentenced to a 240 hour community service order with a disqualification from holding or obtaining a driver's licence for four years.  This was increased on an Attorney-General's appeal to a period of three years imprisonment with a recommendation for parole after one year.

11. Excessive speed was not involved, but the respondent failed to observe a stop sign and collided with a van.  He had a blood alcohol level of 0.15.  His wife suffered a fractured pelvis and a complex laceration over her left elbow, such injuries being likely to endanger her life.  Minor injuries were suffered by others in the vehicles.  The respondent was unfamiliar with the roads upon which he was travelling and did not see the stop sign.  He was 26 years old with no prior convictions or traffic history.

12. Ryan J, with whom de Jersey J (as he then was) and Mackenzie J agreed, said that:

"... where a person drinks alcohol to an extent where he has a blood alcohol reading of .15 or in excess and drives a motor vehicle dangerously, as he did here, and causes death or grievous bodily harm, then the consequence would ordinarily be that he should receive a substantial period of imprisonment by way of punishment."

13. In R v Quinlan,^[3] the applicant pleaded guilty to dangerous driving causing grievous bodily harm whilst adversely affected by liquor and was sentenced to three years imprisonment with a recommendation for parole eligibility after six months.  She claimed the sentence was manifestly excessive.  Quinlan was 18 years of age and had no prior criminal history.  She drove a vehicle with one of her children enclosed in the same belts as an adult passenger at 120 kph in a built-up area in Mt Isa.  She lost control of her vehicle on a s-bend, hit an obstruction and the car overturned; an adult passenger suffered a fractured pelvis.  Quinlan's blood alcohol level was 0.104; she was driving on a learner's permit and the vehicle was defective with nearly flat, bald tyres.

14. Quinlan was the sole parent of two children aged two and a half and one year, she was in employment and had no prior convictions.  The court noted that the penalty imposed in the circumstances was "quite a severe one" but in all the circumstances was within range, dismissing the application.

15. In R v King,^[4] King pleaded guilty after the commencement of her trial to dangerous driving causing grievous bodily harm with a circumstance of aggravation.  Her blood alcohol level was 0.28 per cent.  King was sentenced to a 12 month intensive correction order under the Penalties & Sentences Act 1992 and disqualified from holding a licence for five years.  The Attorney-General appealed against the inadequacy of the sentence.

16. King drove a vehicle on an unfamiliar dirt road in the early hours of the morning at about 100 kph.  She attempted to locate a cassette tape and rolled her vehicle.  She had been warned by friends not to drive because she had had too much to drink.  A passenger received serious chest injuries and would have died without treatment.  She had sole custody of two of her four children and had had a very deprived upbringing.  The respondent had no prior criminal history and a sole traffic conviction for unlicensed driving; she had never held a licence.  The Court determined that the demonstrated remorse, her relatively good previous record and her unfortunate upbringing and family responsibilities did not justify the lenient sentence imposed and a sentence of less than three years imprisonment was not appropriate.  A sentence of three years imprisonment with a recommendation for parole after 12 months was substituted without interfering with the disqualification.

17. In R v Shedlock,^[5] Shedlock pleaded guilty to dangerous driving causing grievous bodily harm with a circumstance of aggravation and was sentenced to 12 months imprisonment to be served by way of intensive correctional order together with treatment and counselling, and payment of compensation of $13,639.00 and a fine of $4,000.  His blood alcohol concentration was 0.165 per cent.  He had 20 breaches over a ten year period under the Traffic Act 1949 which included cancellation of his provisional driver's licence five times and his learner's permit once, two convictions for driving whilst unlicensed, eight offences of speeding and three offences of disobeying a traffic sign or signal.  Whilst on bail for this offence, he committed other offences, including possession of a dangerous drug and possession of a pipe.

18. The Court of Appeal, on an Attorney-General's appeal, noted the offence was a serious example of dangerous driving in that for a period of at least 20 minutes the respondent drove around the inner city streets in an erratic and dangerous manner with the passenger door wide open.  The dangerous driving included driving on the wrong side of the road and driving through red lights.  The respondent finally collided at an intersection with another vehicle after driving through a red light at about 6 a.m.  The driver of the other vehicle received a permanent injury to his right middle finger.  The respondent was 26 years of age and had repaid $22,500 of the property damage he caused.

19. Williams J dissented.  He would have set aside the sentence and in lieu imposed a term of imprisonment of two and a half years with a recommendation for parole eligibility after eight months after taking into account the three month period during which the respondent had been subject to an intensive correction order.  Fitzgerald P noted that whilst the sentence proposed by Williams J was a proper one at first instance and the sentence was manifestly inadequate, the respondent had been working hard as a chef since his sentence and that in all the circumstances no social benefit would be likely to flow from sending him to jail at this stage; the fine should be increased to $10,000 and the disqualification period to five years.  Byrne J agreed that the sentence was manifestly inadequate and that "a head sentence of not less than two and a half years imprisonment, should have been imposed", but because of the factors mentioned by the President, the sentence should be increased only by raising the fine and the period of disqualification. 

20. In R v Wurzbacher,^[6] the applicant pleaded guilty to dangerous driving causing grievous bodily harm with a blood alcohol concentration of 0.19 per cent.  He was 24 years old.  The applicant drove his motorcycle dangerously, despite the protestations of his step-brother who was his pillion passenger, at speeds of up to 130 kph, almost losing control on corners; he crossed an unbroken white centre line and collided with a motor vehicle travelling in the opposite direction and then with the rear of a motor vehicle which he had been trying to overtake.  The applicant's step-brother recovered from his serious leg injuries but the applicant's badly broken leg was finally amputated.  Wurzbacher was sentenced to four years imprisonment with a recommendation for release on parole after 12 months and disqualified from holding or obtaining a driver's licence for three years.

21. Wurzbacher had no criminal history and only three minor traffic matters for which he was fined when he was aged 19.  He demonstrated genuine remorse, pleaded guilty and good references were tendered on his behalf.  The offence was committed on 17 October 1993 but the sentence did not take place until 17 May 1996: the unexplained delay was no fault of the applicant.

22. The majority held the sentence to be manifestly excessive and instead a sentence of two and a half years imprisonment with a recommendation for parole eligibility after eight months was substituted without interfering with the order for disqualification. 

23. In R v Ryan,^[7] Ryan was convicted after a trial of dangerous driving causing grievous bodily harm with a blood alcohol level of 0.155.  The judge imposed a three year fully suspended sentence, a fine of $12,500, a 240 hour community service order and a disqualification from holding or obtaining a driver's licence for three years.  The Attorney-General appealed against the inadequacy of the sentence.  At the time of the appeal, the fine had been partly paid and the community service substantially completed.

24. In the early hours of New Years Day 1994, the respondent drove his car at about 100 kph over a crest in a suburban street, colliding with a taxi as it backed out of the driveway of a residence.  The taxi driver suffered a fractured femur and ruptured liver.  He had a plate inserted in his leg and suffered some residual pain.

25. Ryan's traffic history included three prior speeding offences and one subsequent, but had no criminal history; he was 21 at the time of the offence.  Pincus JA, with whom the other members of the Court agreed, determined that although the judge was in error in not imposing a custodial sentence, having regard to the approach taken in Shedlock and to the respondent's youth and delay, it was not appropriate to impose a custodial sentence at this late stage. 

26. In R v Ekstrom,^[8] Ekstrom pleaded guilty to dangerous driving causing grievous bodily harm with a circumstance of aggravation.  Her blood alcohol level was 0.215.  She was sentenced to three and a half years imprisonment with no recommendation for parole.  She claimed the sentence was manifestly excessive.  The applicant drove into the rear of a taxi on a main Brisbane street and then drove away without stopping; shortly afterwards she drove onto the incorrect side of the roadway and collided head on with another vehicle causing serious injury to the driver who suffered two fractured femurs and could have died.

27. Ekstrom was 30 years of age and had university degrees and a good job; references were tendered on her behalf.  She had no criminal history but had prior convictions for driving under the influence of alcohol whilst a university student; she had a drinking problem and was unlicensed.  She was remorseful and had given financial assistance to the woman whose car had been destroyed in the collision.

28. The Court found that the failure to make an early recommendation did not result in the sentence imposed being manifestly excessive.

29. In R v Rowley,^[9] the applicant pleaded guilty to dangerous operation of a vehicle causing grievous bodily harm with a circumstance of aggravation.  He had a blood alcohol level of 0.182 per cent.  Rowley was sentenced to four years imprisonment with a recommendation for release on parole after 16 months and claimed his sentence was manifestly excessive.  At about 5.10 a.m. on 31 August 1997 he was driving his van along Nudgee Road when he passed another vehicle at about 100 kph.  He completed that manoeuvre and then entered a s-curve without braking.  Because of his speed he failed to take the bend and travelled onto the incorrect side of the road colliding with the complainant's vehicle. The complainant suffered a flail chest with multiple bilateral rib fractures, a compound fracture of the right knee, a fracture of the right hip, a fractured right ankle, a puncture wound to the left thigh and assorted minor injuries.  The injuries, if untreated, would have resulted in death.  He pleaded guilty by way of ex officio indictment.  The applicant had a prior conviction for driving a motor vehicle with a blood alcohol level of .071 and prior convictions for drug offences and stealing.  The application was dismissed.

30. In the case for this Court's consideration, the sentencing judge considered that a period of actual imprisonment was necessary as a deterrence but noted that:

"... the significant matters in your case which make the term of imprisonment shorter than otherwise are the matters referred to by your counsel including the fact that the dangerous driving apparently occurred only over a short period of time and a short distance.  The other significant matters being your naval service, youth, good work history and your family circumstances and the fact that you do not have any criminal history or any substantial traffic history."

31. Since August 1997 the provisions of  s 9(2)(a) of the Penalties & Sentences Act 1992, which provide that:

"(i) a sentence of imprisonment should only be imposed as a last resort and

2. a sentence that allows the offender to stay in the community is preferable"

have no application to an offence like this which has resulted in physical harm to another person: see s 9(3) of the Penalties & Sentences Act 1992.

32. Although more serious offences of this kind can be envisaged, there are serious aspects to this offence.  It is fortunate that the respondent's dangerous driving at 9 p.m. in a provincial city in the vicinity of other cars did not result in a collision with another vehicle or vehicles and further personal injury.  The other serious factor is that the respondent had been charged with an offence of drink driving with a blood alcohol level of .103 just a couple of months earlier; although he had not been dealt with for that offence he was clearly on bail for it at the time he engaged in this dangerous escapade.

33. In Shedlock and Ryan at the time of their appeals they were working in the community paying fines and/or performing community service or intensive correctional orders; these factors do not apply in this case; nor does this case have the mitigating factors present in Wurzbacher of delay and Wurzbacher's leg amputation and, unlike Quinlan, he is not the sole parent of very young children.  The respondent here has the aggravating factor of being on bail for driving a vehicle with a blood alcohol content of 0.103 at the time of this offence.  Comparable sentences prior to 1 July 1997 do not reflect the effect of s 9(3) of the Penalties &  Sentences Act 1992.  The sentence imposed here is outside the acceptable range, albeit not by very much.  The weight of authority makes this sentence too light.  As is often the case in such matters, the offender is a good worker and citizen, and there are negative aspects in sentencing him to a longer term of imprisonment.  However the penalty that was imposed is insufficient to deter others from like conduct and it falls noticeably short of the sentencing level that may be discerned from the discussion of the above cases.  Consistency in such sentences is an important objective.  When all the circumstances of this offence are considered, including the mitigating factors, we are finally persuaded that the sentence imposed was manifestly inadequate in all the circumstances; it does not sufficiently condemn the seriousness of the respondent's behaviour in driving a motor vehicle dangerously and causing grievous bodily harm whilst adversely affected by alcohol, especially in circumstances where he had been charged with drink driving only a few months before.  As the sentencing discretion has miscarried, this Court has an unfettered discretion to re-sentence.  A sentence of three years imprisonment with a recommendation for parole after 12 months properly recognises both the aggravating and extenuating circumstances.

34. We would allow the Attorney-General's appeal, set aside the sentence imposed below and in lieu thereof order that the respondent be imprisoned for three years with a recommendation that he be considered eligible for release on parole after serving 12 months of that sentence.  In addition, we would order that he be disqualified from holding or obtaining a driver's licence for three years.

REASONS FOR JUDGMENT - DERRINGTON J

Judgment delivered 17 August 1999

1. The circumstances of the offence and other relevant facts relating to the sentence are set out in the decision of the President and Thomas JA.  So too are the principal comparative sentences. 

2. This case has some serious features which certainly remove it from the bottom of the range.  The respondent’s driving was seriously criminal and his fault was not mere inadvertence or misjudgment.  He was on remand in respect of an earlier drink driving charge of which he was subsequently convicted, and on this occasion, such was his intoxication that he was warned not to drive at all.  It is inherent in the charge that he caused his passenger grievous bodily harm, and its degree was reasonably substantial. 

3. There is no unusual mitigating factor about this case, such as serious personal injury to the respondent himself, or substantial delay in the bringing of the charge.  His work history is creditable, but unfortunately offences of this kind are sometimes committed by persons who might otherwise be of good character.  Such is the gravity of the harm done and so important is the need for general deterrence that prior good character loses much of its mitigating effect if the offence is serious.

4. Consequently, despite the mitigating features present in this case, because of the gravity of the matters adverted to above, the sentence imposed was substantially inadequate and the sentence proposed by the President and Thomas JA in substitution for it, with which I respectfully agree, is the least that might be expected in circumstances of this kind.